Sheet Metal Workers' International Association, Local No. 18, Afl-Cio

National Labor Relations Board - Board Decisions

Mar 30, 1990

298 N.L.R.B. 50 (N.L.R.B. 1990)

50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' International Association,
Local No. 18, and Sheet Metal Workers' Inter-
national Association, AFL-CIO and Rohde
Brothers, Inc. Case 30-CB-2544
March 30, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
OVIATT
On September 30, 1988, Administrative Law
Judge Hutton S. Brandon issued the attached deci-
sion . The Respondents filed exceptions and sup-
porting briefs, and the General Counsel filed an an-
swering brief.
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 and to adopt the recommended Order
as modified. 2
1. Substitute the following for paragraph 1(b) re-
garding Local 18.
"(b) Coercing or restraining Peter Landgraf and
John Murphy in the exercise of the rights guaran-
teed them by Section 7 of the Act by charging,
trying, and fining them because of their postresig-
nation conduct in working for Rohde Brothers,
Inc. or any other employer with whom Respond-
ent Local No. 18 has a labor dispute."
2. Substitute the following for paragraphs 2(b)
and (c) regarding Local 18.
"(b) Rescind the fines levied against Peter Land-
graf and John Murphy because of their postresigna-
tion work for Rohde Brothers, Inc. or any employ-
er with whom Local No. 18 has a dispute and
refund to them any moneys they may have paid as
a result of those fines with interest.
"(c) Remove all records of the internal charges,
trials, and fines of Peter Landgraf and John
Murphy, and notify each of them in writing that
this has been done."
3. Substitute the attached Appendix B for that of
the administrative law judge.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondents , Sheet Metal Workers ' International As-
sociation, Local No. 18, and Sheet Metal Workers'
International Association , AFL-CIO , their officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
i The Respondent Local has excepted to some of the judge's credibil-
ity findings. The Board 's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect . Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir
1951). We have carefully examined the record and find no basis for re-
versing the findings.
We note that the judge misstated the final sentence of the Internation-
al's revised constitution, art 16, Membership, sec 13, on p. 3 of his deci-
sion . The sentence should read : "No resignation shall be accepted if of-
fered in anticipation of charges being preferred against him, during the
pendancy [sic] of any such charges or , in Canada, during a strike or lock-
out " This error does not affect our decision herein.
a We do not agree with the judge 's recommended Order regarding the
Respondent Local insofar as it includes any other similarly situated em-
ployee-members. See Laborers Local 426 (Building Contractors), 280
NLRB 610 fn 2 (1986); Longshoremen ILA Local 851 (West Gulf Mar,-
time), 194 NLRB 1027 (1972) Here, as acknowledged by the judge, the
record does not reveal that any employee -member, other than Landgraf
and Murphy, had attempted to resign membership during the strike and
had fines levied against them by Respondent Local. The judge's reliance
on Telephone Traffic Union Local 212 (New York Telephone), 278 NLRB
998, 1000 (1986), is therefore misplaced, because there the General Coun-
sel had shown the existence of other unnamed individuals similarly situat-
ed to the named individuals who submitted letters of resignation and
were unlawfully fined . We further note that the complaint failed to allege
the existence of such similarly situated individuals. See Casehandling
Manual (Part One) Unfair Labor Practice , Sec. 10266.2. We shall modify
the recommended Order accordingly
APPENDIX B
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT maintain or enforce article 16,
section 13, of the constitution and ritual to the
extent that it imposes restrictions on resignation
from membership by the following language:
Any member in good standing who had paid
all dues and financial obligations may sever his
connection by written resignation mailed to
the financial secretary-treasurer of the local
union with which he is affiliated by certified
or registered mail. Resignation shall be effec-
tive upon receipt of notification in the manner
prescribed herein. No resignation shall be ac-
cepted if offered in anticipation of charges
being preferred against him , during the pen-
dancy [sic] of any such charges or during a
strike or lockout.
WE WILL NOT restrain or coerce Peter Landgraf
or John Murphy in the exercise of the rights guar-
anteed them by Section 7 of the Act, by charging,
trying, and fining them because of their postresig-
nation conduct in working for Rohde Brothers,
298 NLRB No. 11
SHEET METAL WORKERS LOCAL 18 (ROHDE BROS.) 51
Inc. or any other employer with whom the Union
has a labor dispute.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL remove from governing documents the
language in article 16, section 13, of the constitu-
tion and ritual noted above which restricts resigna-
tions from membership.
WE WILL rescind the fines levied against Peter
Landgraf and John Murphy because of their pos-
tresignation work for Rohde Brothers, Inc. or any
other employer with whom the Union has a dis-
pute and refund to them any moneys they may
have paid as a result of such fines with interest.
WE WILL remove all records of the internal
charges, trials, and fines of Peter Landgraf and
John Murphy for performing postresignation work
for Rohde Brothers, Inc. or any other employer
with whom the Union has a dispute, and WE WILL
notify them in writing that this has been done and
that these records will not be used against them in
the future.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, the Company, and
the Local,2 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company is a corporation with an office and
place of business in Plymouth, Wisconsin, where it has
been in the business of mechanical and electrical con-
struction and maintenance. During the calendar year pre-
ceding issuance of the complaint the Company purchased
and received goods valued in excess of $50,000 at its
Plymouth facility directly from points located outside
the State of Wisconsin. On these facts the complaint, as
amended, alleges, Respondents in their respective an-
swers admit, and I find, that the Company is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The complaint further alleges, Respondents further
admit, and I also find that Respondents are labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
SHEET METAL WORKERS' INTERNA-
TIONAL ASSOCIATION, LOCAL No. 18
Stephen J. Sweet, Esq., for the General Counsel.
Matthew R. Robins, Esq. (Previant, Goldberg, Uelmen,
Grath Miller & Brueggemen, S.C.), of Milwaukee, Wis-
consin, for Respondent Local No. 18.
James K. Pease Jr., Esq. (Melli, Walker, Pease & Ruhly,
S.C.), of Madison, Wisconsin, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
This case was tried at Milwaukee, Wisconsin, on August
2, 1988. The charge was filed by Rohde Brothers, Inc.
(Rohde or the Company), on August 19, 1986.1 The ini-
tial complaint was issued on October 10, 1986, and an
amended complaint issued January 27, 1988. The com-
plaint as further amended at the hearing alleges that
Sheet Metal Workers' International Association, Local
No. 18 (the Local), and Sheet Metal Workers' Interna-
tional Association, AFL-CIO (the International and
jointly Respondents), violated Section 8(b)(1)(A) of the
National Labor Relations Act (the Act). The issues pre-
sented are whether Respondents violated Section
8(b)(1)(A) of the Act by (a) preferring internal union
charges against and imposing fines upon Rohde employ-
ees Peter Landgraf and John Murphy for conduct occur-
ring after these employees had allegedly effectively re-
signed membership in Respondents , and by (b) maintain-
ing constitutional restrictions on employee resignations
from membership.
A. The Alleged Unlawful Restrictions on Resignation
The amended complaint alleged and Respondents by
their answers admitted , that Respondents maintained and
enforced at all relevant times and until August 26 the fol-
lowing provision in the "Constitution and Ritual" of the
International:
Article 16, Membership , Section B
Any member in good standing who has paid all dues
and financial obligations may sever his connections
by written resignation mailed to the financial secre-
tary-treasurer of the local Union with which he is
affiliated by certified or registered mail. Resigna-
tions shall be effective upon receipt of notification
in the manner prescribed herein . No resignation shall
be accepted if offered in anticipation of charges being
preferred against him during the pendancy [sic] of any
such charges or during a strike or lockout . [Emphasis
supplied in the complaint as amended.]
It was also admitted by Respondents that the forego-
ing consitutional provision was modified so that after
August 26 it read as follows:
Any member in good standing who has paid all dues
and financial obligations may sever his connections
by written resignation mailed to the financial secre-
tary-treasurer of the local union with which he is
affiliated by certified or registered mail. Resigna-
tions shall be effective upon receipt of notification
in the manner prescribed herein . No resignation shall
be accepted if offered in anticipation of charges being
2 The International was unrepresented at the hearing and filed no brief
a All dates are in 1986 unless otherwise indicated in this matter.
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
preferred against him, during the pendancy [sic] of any
such charges or during a strike or lockout. [Emphasis
supplied in the complaint as amended.]
taining the first sentence in article 16, section 13, the
International and the Local violated Section 8(b)(1)(A)
of the Act as alleged.
B. Arguments and Conclusions
It is the General Counsel's position that the italicized
portions of the International constitution and ritual as
quoted above in both original and modified forms consti-
tute restraint and coercion of employee-members in vio-
lation of Section 8(b)(1)(A) of the Act, inasmuch as they
impose restrictions on a member's right to resign. In sup-
port of this position the General Counsel relies upon Pat-
tern Makers League v. NLRB, 473 U.S. 95 (1985), Auto
Workers Local 73 (McDonnell Douglas), 282 NLRB 466
(1986), Machinists Local 1414 (Neufeld Porsche Audi), 270
NLRB 1330 (1984), and, particularly Sheet Metal Work-
ers Local 73 (Safe Air), 274 NLRB 374 (1985), enfd. 840
F.2d 502 (7th Cir. 1988), and Sheet Metal Workers' Local
16 (Salem Heating), 274 NLRB 41 (1985), involving the
same constitutional provision herein before modifica-
tion.3
Local 18's brief did not address the legality of the un-
derlined sentences in the Union's constitutional provi-
sions.
In Neufeld Porsche Audi, supra at 1333, the Board very
clearly held that "any restrictions placed by a union on
its members right to resign . . . are unlawful ." In Safe
Air, supra, it applied this holding to find the third sen-
tence of article 16, section 13, set out above in its un-
modified form was an unlawful restriction and ordered it
expunged. As already noted the Board's Order was en-
forced in February 1988 by the Seventh Circuit Court of
Appeals. It must therefore be concluded that the Local's
maintenance of the third sentence of article 16, section
13, at the relevant times before modification of that pro-
vision violated Section 8(b)(1)(A) as alleged.4
It must further be concluded that the first sentence in
article 16, section 13, in both its original and modified
form is also unlawful because to the extent it requires the
payment of all dues and financial obligations prior to res-
ignation as a condition therefor, it too imposes a restric-
tion on resignation .5 Such a restriction was among those
found unlawful and overly broad in a constitutional pro-
vision considered by the Board in Operating Engineers
Local 12 (Associated Engineers), 282 NLRB 1337 (1987). I
find in agreement with the General Counsel, that main-
3 Because the enforced Order in Safe Air, supra, requiring expunge-
ment of the third sentence of the provision applied to the International
here, the General Counsel at hearing withdrew the complaint allegation
directed at the International for maintaining the third sentence in the con-
stitutional provision prior to modification.
4 It is established that even maintenance of restrictions on resignation
in governing documents restrains and coerces employee-members from
exercising their Sec . 7 rights and violates Sec. 8(b)(1)(A) of the Act. En-
gmeers & Scientists Guild (Lockheed-California), 268 NLRB 311 (1983).
5 It does not appear that in Safe Air, supra, which was decided on stip-
ulated facts, the parties argued or the Board considered whether the first
sentence of art 16, sec . 13, was unlawful . However, while addressing
only the third sentence of that constitutional provision the Board held
that all the restrictions on resignation found in art 16, sec 13, were un-
lawful and invalid in Salem Heating, supra. Also in McDonnell Douglas,
supra, financial good-standing requirements similar to those in the first
sentence of art. 16, sec 13, herein was included in the unlawful restnc-
tions ordered expunged
C. The Alleged Unlawful Charges and Fines
A union does not violate the Act by disciplining its
members for crossing picket lines prior to the time they
resign their membership. Newspaper Guild Local 3 (New
York Times), 272 NLRB 338 (1984); McDonnell Douglas,
supra . It is upon this principle that the Union relies in its
defense to the complaint allegations regarding coercive
and unlawful charges and fines brought against and im-
posed upon Peter Landgraf and John Murphy growing
out of their working for the Company with which the
Local admittedly had a labor dispute at all relevant
times. The facts follow.
1. Peter Landgraf
A labor dispute between the Local and the Company
arose about July 1985. At all relevant times thereafter
the Union struck the Company and engaged in picketing.
Landgraf, a member of the Local and an employee of
the Company, participated in the strike. As the strike
wore on Landgraf's economic situation deteriorated de-
spite his efforts at interim employment. As a result Land-
graf decided to return to work for the Company and tes-
tified herein that he telephoned Jerry Voechting, busi-
ness representative of the Local, on the evening of De-
cember 17, 1985, to advise him of this decision. Landgraf
testified he was unable to reach Voechting at his home
where Voechting conducted union business and where
he maintained a business phone listed under the name of
the Local. However, Landgraf did leave a message on
Voechting's machine attached to the phone requesting
that Voechting return his call. Later in the same evening
not having heard further from Voechting, Landgraf
again telephoned Voechting. Again he was unable to
reach Voechting, and this time left a second message on
Voechting's answering machine saying that he could not
wait and advising Voechting that he was quitting the
Union and going back to work for the Company. It is
undisputed that Landgraf returned to work the following
day, December 18, 1985. Later in the same day Landgraf
at the suggestion of his father , a management representa-
tive of the Company and a former member of the Local,
executed a letter of resignation from the Union and
mailed it.
Voechting testified that he returned to his home in the
late evening of December 17, 1985, and did not review
messages on his answering machine until the next morn-
ing. While he conceded that he received two messages
from Landgraf he testified the second message only said
Landgraf was returning to work at the Company with
no reference to quitting the Union. Voechting further
testified that he telephoned Landgrar's wife the morning
of December 18 and was told that Landgraf had re-
turned to work at the Company that day.
Voechting admittedly prepared and filed internal
charges against Landgraf on December 19, 1985. Follow-
ing internal union procedures Landgraf on March 10,
1986, was fined $2500 for breech of article 17, section
SHEET METAL WORKERS LOCAL 18 (ROHDE BROS.) 53
1(g) of the constitution and ritual which listed as an of-
fense against the Union "accepting employment in any
shop or on any job where a strike or lockout" existed.
2. John Murphy
Murphy had been a member of Local 18 since 1966.
However, he was not employed by the Company at the
time the labor dispute with Local 18 began. In May 1986
he was employed on a job to which he had been referred
by Local 18 when on May 27 he received a job offer
from the Company which he had applied for somewhat
earlier . Murphy testified he decided to finish out the
workweek at the place where he was then employed
before going to work for Rohde. Murphy further testi-
fied that on May 30 he telephoned Voechting and,
unable to reach Voechting personally, left a message on
Voechting's answering machine saying he "was quitting
the union." He then began work at the Company on
June 1.
Voechting testified that he learned of Murphy's em-
ployment by the Company through another individual
around June 2. On June 5 Voechting filed internal union
charges against Murphy alleging that he violated article
17, section 1(g) of the Constitution and Ritual. It was not
until July 28 that Murphy put his resignation in writing.
On August 13, he was found guilty of the charges
claimed by Voechting and finned $2500.
3. Arguments and conclusions
The General Counsel and the Company argue that
both Landgraf and Murphy effectively resigned their
union memberships prior to their returning to work for
the Company. Accordingly, they contend that the fines
imposed by the Local amounted to unlawful postresigna-
tion fines rather than fines for conduct occurring prior to
resignation which are lawful under NLRB v. Allis-
Chalmers Mfg. Co., 388 U.S. 175, 181 (1968). While
noting that the constitutional provision, discussed above,
required the resignation in writing, and although appar-
ently conceding that such provision is not "facially in-
valid," the General Counsel asserts that enforcement of
the provision under the circumstances of this case violat-
ed Section 8(b)(1)(A) because it became more than a
"ministerial, procedural" requirement. In taking this posi-
tion the General Counsel recognized that an 8(b)(1)(A)
violation on this point was not specifically alleged, but
argued that the matter was fully, litigated and should be
decided. Moreover, even assuming the validity of the "in
writing" requirement, the General Counsel and Compa-
ny argued that in view of the unlawful restrictions extant
in article 16, section 13, at the time, even a written resig-
nation would not have, been, given effect and submission
of a written resignation would have been an act of futili-
ty. The Company further argues that there was also no
notice to either Landgraf or Murphy that Local 18 re-
quired resignations to be in writing. Finally, both the
General Counsel and Company contend that under the
circumstances of this case the actions of Landgraf and
Murphy in leaving their oral resignations on Voechting's
message recording system was effective notice of their
resignations.
The Local in its brief argues neither Landgraf or
Murphy submitted valid oral resignations because on its
view of the facts neither Landgraf nor Murphy specifi-
cally conveyed to the Union their intent to resign prior
to their going to work for the Company and at the time
charges were filed against them . Moreover, in this
regard, the Local argues that in any event Voechting did
not have any authority to receive the resignations since
he was not an officer of the Local . Finally, the Local
contends that the requirement that resignations be in
writing was a valid one which was not attacked in the
complaint or at the hearing. Moreover , the Board, ac-
cording to the Local , citing the concurring opinion in
Machinists Local 1327 (Dalmo Victor), 263 NLRB 984,
992 fn. 52 (1982), has held that a requirement that a res-
ignation be in writing does not impose an unlawful re-
striction on resignation within the scope or application of
the holding in Neufeld Porsche-Audi, supra.
Considering first the factual issue in Landgraf 's situa-
tion, I conclude initially that Landgraf did in fact leave
the message on Voechting's answering machine that he
was "quitting" the Union and "going back to work." In
reaching this conclusion I credit Landgraf over Voecht-
ing. Landgraf exhibited that degree of uncertainty in
recall in his general testimony which could be expected
after the passage of more than 2-1/2 years . Indeed, those
uncertainties expressed in his overall testimony lends a
certain amount of sincerity to, his testimony which con-
trasts sharply with Voechting's certainty regarding the
absence of any message from Landgraf regarding his
quitting the Union. Voechting 's certainties are all the
more suspect, since he would have had little reason to
note or be concerned with an oral resignation at the
time. It would have been inconsequential based upon the
Union's present contention that a resignation must be in
writing to be effective . Moreover , the resignation would
not have been honored in any event in light of the out-
standing prohibition at the time against resignations
during a strike. Because Landgraf made two calls to
Voechting 's answering machine on December 1,7, 1985, it
is clear he was making a determined ' effort to communi-
cate with the Union that is wholly consistent with the
determination to "quit" the Union . Accordingly , and be-
cause Landgraf impressed me in his demeanor as more
persuasive than Voechting , I credit Landgraf that be spe-
cific lly left the message on Voecliting 's machine that he
was quitting the Union.
Absent nonrestrictive provisions ou resignation proce-
dures no special wording is necessary to establish a resig-
nation so long as the intent of the member to resign is
made clear. See Telephone Traffic Union Local 212 (New
York Telephone), 278 NLRB 998 (1986); Machinists Local
2045 (Engle Signal), 268 NLRB 635, 637 (1984). I con-
clude then that absent a valid nonrestrictive procedure
for resignation Landgraf's message that he was quitting
the Union is legally sufficient to constitute a "resigna-
tion," However, even if I were to find that Landgraf had
not verbalized his desire to quit the Union I would nev-
ertheless find that he communicated his desire in,this
regard in the message that he was returning to work for
the Company . This is because of Landgraf's uncontra-
54 DECISIONS OF THE NATIONAL, LABOR RELATIONS BOARD
dicted and credible testimony regarding a conversation
with Voechting in early December 1985. At that time
Landgraf told Voechting that he was getting desperate
and was thinking about going back to work for the Com-
pany. Voechting replied that that was not a good idea
for a young man like him to quit the Union and go back
to work. It is clear then that Voechting equated going
back to work with quitting the Union. Therefore, a mes-
sage from Landgraf only that he was going back to work
conveyed to Voechting, Landgraf's intent to "quit" the
Union.
I likewise credit Murphy's testimony that he left the
message on Voechting's answering machine that he too
was quitting the Union. Murphy's testimony was
straightforward and honestly delivered. That he indeed
placed a call to Voechting's number on May 30 was sub-
stantiated by Murphy's home telephone bill showing a
toll call to Voechting's number on that date. There was
no reason apparent from the record for Murphy to com-
municate with Voechting other than to inform him he
was quitting the Union. Since Murphy considered the
matter sufficiently important to place the call in the first
instance, it is unlikely he would have failed to leave the
message on Voechting's answering machine as he
claimed.
To the extent both Landgraf and Murphy used
Voechting's answering machine as a device for commu-
nication with the Local, I find such use effective and
binding upon the Union. The answering machine is a
device used by Voechting and the Union as a means of
business communication. The answering machine was
paid for by the Local and it was attached to a phone
listed as the Union's business phone. Not only was it
listed in the public telephone books as the Union's
number but Voechting in union newsletters had directed
members to contact him at that number. Accordingly,
Voechting and the Local, having established the phone
number and the answering machine as a method for
communicating with members and those with whom the
Union did business, I conclude a message left on Voecht-
ing's answering machine was sufficient to put the Local
on notice of the information contained in the messages. If
the messages were lost by some failure of the answering
machine either initially in recording the message or in re-
playing of the message, the Local nevertheless is legally
chargeable with notice of the message. Cf. Oil Workers
Local 6-578 (Gordy's Inc.), 238 NLRB 1227, 1229 (1978).
Further, notice is chargeable to the Local as, of the time
the message could be received by the Local. Cf. Team-
sters Local 439 (Tracy American Ready Mix), 281 NLRB
1232 (1986). It is clear here that Landgraf's message was
clearly available to Voechting on the evening of Decem-
ber 17, even though Voechting did not consult his an-
swering machine on that date.
I find no merit to the Local's argument that Voechting
had no authority to accept a resignation in the Local's
behalf. Voechting in his position as business agent had
clear authority to negotiate and administer collective-
bargaining agreements, and he thus had actual authority
to conduct the Union's business. His authority was sub-
stantially greater than that of a stewards in Teamsters
Local 610 (Browning-Ferris Industries), 264 NLRB 886
(1982), whom the Board found had no authority to
accept resignations. There is no rational basis for con-
cluding here that notice to Voechting was notice to the
Local on business matters but not on resignations. More-
over, to the extent the constitutional provision required a
written resignation mailed only to the financial secretary-
treasurer of the Local, it appears that the provision is
unduly restrictive under Neufeld Porsche Audi, supra. By
limiting to one individual the authority to receive resig-
nations Respondent elevates form over substance and
complicates resignation procedures to the frustration of
statutory rights of employees. Cf. Auto Workers Local
128 (Hobart Corp.), 283 NLRB 1175 (1987), where the
Board held the failure to follow union rules on mail serv-
ice in submitting a resignation did not invalidate a resig-
nation actually received by the union. Cf. also Electrical
Workers IUE Local 441 (Phelps Dodge), 281 NLRB 1008
(1986).
The Local's contention that the oral resignations here
were invalid because they were not in conformance with
the requirement of article 16, section 13, requiring that
they be in writing has more surface appeal. As Adminis-
trative Law Judge Richard Taplitz stated in dicta in
Bricklayers Local 17 (California Tile), 271 NLRB 1571,
1577 (1984):
[A] requirement that resignations be in writing is
certainly a reasonable one. It promotes administra-
tive efficiency and avoids the possibility of misun-
derstandings. If proper notice were given, I believe
that an official of the Union . . . could make such a
requirement.
Since the administrative law judge did not hinge his
decision on the point noted above, it was not necessary
for the Board to treat or pass upon this issue. It is true
that the concurring opinion of then Chairman Van de
Water and Board Member Hunter in Dalmo Victor,
supra, clearly indicated that a requirement that a resigna-
tion be in writing would not impose an unlawful "restric-
tion" on resignations. However, the Board has not subse-
quent to Neufeld Porsche-Audi, supra, which adopted the
broader underlying principle in the concurring opinion in
Dalmo Victor, supra, that "any restrictions" on union res-
ignation is unlawful has not passed upon the legality of a
"resignation in writing " requirement . In at least one case
where the point has come up the Board has finessed the
matter by assuming the legality of the- requirement for
the purposes of that case but finding that it would not
affect the result in the case, See Telephone Traffic Union
Local 212 (New York Telephone), 278 , NLRB 998 fn. 1
(1986).
In like manner, and without regard to whether the
parties litigated the legality of a "written resignation" re-
quirement herein, I find that it is not necessary to deter-
mine the issue for it would not affect the results reached
in this case for three reasons. First, the requirement that
resignations be in writing is found in article 16 , section
13, which has already been found to contain overly
broad and unlawful restrictions on resignations, both in
its original version and as modified in August 1986.
These overly broad restrictions on resignation deprive
SHEET' METAL WORKERS LOCAL 18 (ROHDE BROS.) 55
the narrower restriction requiring resignations in writing
from having any independent vitality and validity. See
Bricklayers Local 17 (California Tile), supra at 1577; Sheet
Metal Workers 170 (Able Sheet Metal), 225 NLRB 1178
fn. 1 (1976). There was thus no valid extant provisions in
the International's constitution which would preclude the
effectiveness of oral resignations of Landgraf and
Murphy.
Secondly, the International and the Local were main-
taining and giving effect to the unlawful and overly
broad restrictions on resignations in article 16, section 13,
at the time Landgraf and Murphy submitted their oral
resignations. Accordingly, even a fully delivered written
resignation to the Union's financial secretary-treasurer
would not have been honored in light of the existing dis-
pute between the Company and the Union. Thus, it
would have been a futile gesture for Landgraf and
Murphy to submit written resignations. The law does not
require futile ritual. Carpenters Local 1233 (Polk Con-
struction), 231 NLRB 756, 761 (1977). Accordingly, the
"in writing" requirement is not a bar to oral resignation
under the circumstances here. The Local argues, citing
New York Telephone, supra at fn. 2, that the futility doc-
trine is inapplicable here because there was no objective
basis for a claim that Landgraf or Murphy knew of the
provisions of the constitution and believed an attempt to
resign would be futile.6 This argument is misplaced. In
New York Telephone, supra, which involved constructive
resignations, the futility doctrine did not apply because
there was no showing that the employee-members who
failed to take any affirmative effort to resign were dis-
suaded from such effort by the knowledge of the unlaw-
fully broad restrictions on resignation. The instant case
does not involve constructive resignations for here I
have found that affirmative efforts to resign were made
by Landgraf and Murphy.
Thirdly, and finally, neither Landgraf or Murphy were
ever told of the existence of the requirements of article
16, section 13, including the requirement that resigna-
tions be in writing. The Respondents have the burden of
persuasion' that Landgraf and Murphy were advised of
the requirements of article 16, section 13, in this regard.
Oil Workers Local 6-578 (Gordy's, Inc.), supra, 129-132
(1978); Auto Workers Local 1384 (Ex-Cell-O Corp.), 227
NLRB 1045 (1977). It has not carried that burden here.
Accordingly, because it has not been shown that Land-
graf or Murphy had knowledge of the requirements that
the resignation be in writing, the writing requirement in
article 16, section 13, could not be lawfully used against
them even assuming that it otherwise constituted a
lawful requirement. California Tile, supra at 1577.
Considering all of the above, I find that the oral resig-
nations of Landgraf and Murphy were effective, that
they were effective prior to their proceeding to work for
Rohde, that they were engaged in protective activity
under the Act, therefore, when they went to work for
Rohde, and that the Local's fining of them for working
for Rohde constituted fines for postresignation conduct,
and that by fining them for such conduct the Local inter-
fered with their Section 7 rights in violation of Section
8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. Rohde Brothers, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondents, Sheet Metal Workers' International
Association, Local 18 and Sheet Metal Workers' Interna-
tional Association, AFL-CIO, are each labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Respondent Local No. 18 by enforcing the Interna-
tional constitution prohibition on its members' right to
resign from the Union unless they are in financial good
standing and/or prohibiting resignation during the pend-
ency of a strike or lockout, or when charges are contem-
plated or preferred against employees, and by charging,
trying, and fining employees including Landgraf and
Murphy, who worked during the strike after they re-
signed from Respondent, has violated Section 8(b)(1)(A)
of the Act.
4. Respondent International by maintaining in its con-
stitution a prohibition on its members' right to resign
from the Union unless they are members in financial
good standing has violated Section 8(b)(1)(A) of the Act.
5. The foregoing violations of the Act described in
paragraphs 3 and 4 above, constitute unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondents engaged in certain
unfair labor practices I recommend that they be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that the Local fined Landgraf and
Murphy in violation of Section 8(b)(1)(A) of the Act, I
shall recommend that the Union be ordered to recind the
fines, and if any portion of the fines have previously
been paid, Respondent Local 18 shall be required to
refund that money with interest to be computed in the
manner set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987).'
It is further recommended that Local No. 18 be or-
dered to remove from its files any reference to the un-
lawful charges, trials, and fines of Landgraf and Murphy
and notify them in writing that this has been done and
that the charges, trials, and fines will not be used against
them in any way.
The General Counsel argued herein that the order rel-
ative to the fines imposed on Landgraf and Murphy
should be extended to all employee-members of the
Local similarly fined under the same constitutional provi-
6It is interesting to note that in advancing this argument Local 18
charges Landgraf and Murphy with the absence of knowledge of art. 16,
sec. 13 requirements, while at the same time it apparently argues, without
factual basis, that they had knowledge of the "resignation in writing" re-
quirement contained within the same provision.
" Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621. Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp., 231
NLRB 651 (1977)
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sions found unlawful herein notwithstanding the absence
of any submitted evidence regarding similar situated em-
ployee-members. Such a remedy was found appropriate
in New York Telephone, supra at 1000, and accordingly,
will be provided here but applicable only to the Local
since there was no evidence of other incidents of unlaw-
ful fines by the International.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
A. Respondent, Sheet Metal Workers' International
Association, AFL-CIO, its officers, agents, and repre-
sentatives, shall
1. Cease and desist from
(a) Maintaining in its governing documents article 16,
section 13, of the Constitution and Ritual to the extent it
imposes restrictions on resignation of membership by the
following language:
Any member in good standing who has paid all
dues and financial obligations may sever his connec-
tions by written resignation mail to the financial
secretary-treasurer of the local union with which he
is affiliated by certified or registered mail.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Expunge from its governing documents those por-
tions of article 16, section 13, of its Constitution and
Ritual cited in 1(a) above which restricts resignations.
(b) Post at its headquarters and business offices and at
the business office and meeting halls of Local No. 18 and
mail to all its other affiliated local unions for posting in
their business offices and meeting halls copies of the at-
tached notice marked "Appendix A."9 Copies of the
notice on forms provided by the Regional Director for
Region 30, after being signed by the Respondent's au-
thorized representative shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Mail to the Regional Director for Region 30 signed
copies of the notice for posting by Rohde Brothers, Inc.,
if the Company be willing.
8If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
9 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."
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
B. Respondent, Sheet Metal Workers' International
Association, Local 18, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Maintaining or enforcing article 16, section 13, of
the constitution and ritual to the extent that it imposes
restrictions on resignation from membership by the fol-
lowing language:
Any member in good standing who had paid all
dues and financial obligations may sever his connec-
tion by written resignation mailed to the financial
secretary-treasurer of the local union with which he
is affiliated by certified or registered mail. Resigna-
tion shall be effective upon receipt of notification in
the manner prescribed herein. No resignation shall
be accepted if offered in anticipation of charges
being preferred against him, during the pendancy
[sic] of any such charges or during a strike or lock-
out.
(b) Coercing or restraining Peter Landgraf, John
Murphy, and similarly situated employee-members who
have resigned from, and are no longer members of, Re-
spondent Local No. 18 in the exercise of the rights guar-
anteed them by Section 7 of the Act, by charging,
trying, and fining them because of their postresignation
conduct in working for Rohde Brothers, Inc., or any
other employer with whom Respondent Local No. 18
has a labor dispute.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Expunge from its Constitutional and Ritual article
16, section 13, as set forth above in 1(a).
(b) Rescind the fines levied against Peter Landgraf,
John Murphy, and any other employees similarly situat-
ed because of their postresignation work for Rohde
Brothers, Inc., or any other employer with whom Local
No. 18 has a dispute and refund to them any moneys
they may have paid as a result of such fines, with inter-
est.
(c) Expunge all records of the internal charges, trials,
and fines of Peter Landgraf, John Murphy, and any
other similarly situated employee performing postresigna-
tion work for Rohde Brothers, Inc., or any other em-
ployer with whom the Union has a dispute and notify
each of them in writing that this has been done.
(d) Post at its business offices and meeting halls copies
of the attached notice marked "Appendix B."110 Copies
of the notice, on forms provided by the Regional Direc-
tor for Region 30, after being signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places, including all places
10 See fn. 9
SHEET METAL WORKERS LOCAL 18 (ROHDE BROS.) 57
where notices to members are customarily posted. Rea-
sonable steps shall be taken to ensure that the notices are
altered, defaced, or covered by other material.
(e) Mail to the Regional Director for Region 30 signed
copies of the notice for posting by Rohde Brothers, Inc.,
if the Company be willing.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed with respect to any violation not specifically
found above.
APPENDIX A
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
extent it restricts resignation from membership by the
following provisions:
Any member in good standing who had paid all
dues and financial obligations may sever his connec-
tions by written resignation mail to the financial
secretary-treasurer of the local union with which he
is affiliated by certified or registered mail.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WE WILL expunge from our governing documents
those portions of the Constitution and Ritual article 16,
section 13, as set forth above, to the extent they impose
restrictions on resignations.
SHEET METAL WORKERS' INTERNATIONAL
ASSOCIATION , LOCAL No. 18, AFL-CIO
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT maintain in our governing documents,
article 16, section 13, of the constitution and ritual to the