Sheet Metal Workers International Association, Local Union 68 (The Demoss Co.)

National Labor Relations Board - Board Decisions

Jun 29, 1990

298 N.L.R.B. 1000 (N.L.R.B. 1990)

1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association,
Local Union 68 (The DeMoss Co.) and William
H. Shank Jr. and James L. Belota and Loy R.
Mann and Dennis Williamson . Cases 16-CB-
2370-3, 16-CB-2370-4, 16-CB-2370-5, and
16-CB-2385
June 29, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On December 21, 1984, the attached decision
was issued.' The Respondent filed exceptions and a
supporting brief, and the General Counsel filed a
reply 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 only to the extent consistent with this
Decision and Order.2
project there also may be foremen below the super-
intendents. 3
The Respondent and DeMoss were parties to a
collective-bargaining agreement that expired on
April 30, 1984.4 In early April Williamson and five
superintendents5 submitted written resignations to
the Respondent. No new agreement was reached
by April 30, and the Respondent commenced a
strike against DeMoss.
Dennis Williamson and the five superintendents
continued to work for DeMoss during the strike.
All but Dennis Williamson did some bargaining
unit work during the strike.6
Between May and July 1984, the Respondent
charged, tried, and fined Dennis Williamson and
the five superintendents for two separate sets of
violations of the Respondent's International consti-
tution. First, each was found guilty, among other
things, of encouraging secession from the Union,
engaging in conduct detrimental to the best inter-
ests of the Union, and adversely affecting the possi-
ble renewal of the contract by attempting to resign
from the Union. On this set of charges each was
fined between $1500 and $3500.7 Second, each was
charged with the following:
I. FACTS
The DeMoss Company, Inc., which fabricates
and installs heating and cooling ductwork, is
owned by Jim DeMoss. Directly below him in the
company hierarchy is Dennis Williamson, a project
manager. Williamson testified that he has ultimate
control of jobs for which the Company has con-
tracts. This control includes, inter alia, supervising
"job" or "field" superintendents. The number of
job superintendents the Company has varies by the
number of employees working on a particular
project and the number of projects under contract.
Depending on the number of employees on a
' The decision was prepared by the late Administrative Law Judge
Stanley N Ohlbaum, who died on October 31, 1984. Judge Ohlbaum pre-
sided at the hearing With the agreement of the parties, the decision was
issued over Chief Administrative Law Judge Melvin J Welles' signature.
2 The Respondent excepted to the judge's findings that it violated Sec
8(b)(1)(A) by fining employees Shank, Belota, and Mann for resigning
their union memberships, by fining them for returning to work after their
resignation, and by suspending them from membership for failing to pay
dues We adopt the judge's findings regarding the fines See Machinists
Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984) With respect
to the judge's findings that the suspensions of the employees were unlaw-
ful, however, we reverse, inasmuch as the General Counsel did not allege
that the suspensions were unlawful Thus, we note that it was the judge
who elicited the testimony about the suspensions, and that when he asked
if the complaint alleged that the suspensions were unlawful, the General
Counsel correctly responded that it did not The General Counsel did not
then or later seek to amend the complaint to allege that the suspensions
were unlawful Thereafter, in postheanng briefs to the judge, the General
Counsel argued only that the fines violated the Act and did not refer to
the suspensions
3 The record does not provide a comprehensive view of the Compa-
ny's structure Project Manager Dennis Williamson testified that he di-
rected three job superintendents in April 1983. Claud Montgomery, Joe
Williamson, and Mike Hardison Later, Williamson testified that Glen
Long was a superintendent, but "he does not report to me at this time
He's not working on any of my projects " (Emphasis added) Williamson
also testified that "Charles Gunn is shop superintendent and doesn't
report directly to me " Thus, it is possible that Long and Gunn report to
another project manager or directly to the owner
4 All dates are in 1984 unless otherwise noted
5 The job superintendents are Charles Gunn, Joe Williamson, Mike
Hardison, Olen Long, and Claud Montgomery
For the reasons stated by the judge, we find that Dennis Williamson
and the five job superintendents are supervisors within the meaning of
Sec 2(11) of the Act
6 The judge erroneously stated that there was no contention that any
of the six did unit or nonsupervisory work after their resignations In
fact, the Respondent contended that the superintendents did unit work
during the strike and elicited testimony to support its contention Thus,
the Respondent's business manager testified that "any work with the
tools of the sheet metal trade," estimating, detailing, drafting, drawing,
and sketching, were considered bargaining unit work Superintendent
Gunn averred that for as long as he had been a superintendent he had
worked with tools of the trade for a short period of time once a month
He did not indicate that any change occurred after the strike Superin-
tendent Long stated that after April 30 he worked with tools a "signifi-
cant amount of time " Superintendent Hardison agreed that he had "done
. detailing, drafting, cutting tickets, drawings," and estimating since
April 30 Superintendent Joe Williamson affirmed that, since April 30, he
had spent about 75 percent of his time working with tools to install sheet
metal Superintendent Montgomery stated that since May he has
"worked with my tools, yes, quite consistently" Dennis Williamson testi-
fied, however, that he did not work with tools during the strike
7 In fact, as the judge found, the resignations had been submitted at a
time and under circumstances in which they complied with the substan-
tive conditions prescribed for resignations by the Respondent's constitu-
tion, i e., the men were members in good standing with no dues or other
financial delinquencies, they did not offer their resignations "in anticipa-
tion of charges being preferred" against them, and no strike or lockout
was in effect at that time Although the Respondent argued that three of
Continued
298 NLRB No. 152
SHEET METAL WORKERS LOCAL 68 (DEMOSS) 1001
Specifically on or about May 1, 1984, Brother
[name] accepted employment and continues to
be employed by an employer engaged in sheet
metal work that does not have a collective
bargaining agreement with Sheet Metal Work-
ers Local 68 covering wages, hours, fringes
and working conditions for its employees.8
The trial committee minutes for each of the six
state that "Business Manager Ronnie W. Gray tes-
tified that Brother [name] accepted employment
and continues to be employed by an employer en-
gaged in sheet metal work that does not have" a
contract with the Respondent. The minutes further
reflect the guilty finding and the fine of each of the
six for this second charge.9
The Respondent's business manager testified that
each of the six had been suspended from member-
ship for failure to pay dues. (This referred to the
period after the six had submitted their resigna-
tions, since it is undisputed they were in good
standing at the time they resigned.) None had been
expelled as of the time of the hearing.
With respect to the authority of each of these six
men to function as the representative of his em-
ployer for the adjustment of grievances, the record
shows that the superintendents had authority to re-
solve certain jobsite problems or disputes when
they first appeared. Thus, ]Project Manager Dennis
Williamson -testified, that:
as, far as jobsite problems, they have the initial
responsibility and authority to settle them if
they can. They work with the other contrac-
tors. They're the direct supervisor of our
people working on the job, so if there's a
problem between two of our employees or our
employee and an employee of another contrac-
them did not meet all procedural requirements because their resignations
were not submitted by certified or registered mail, the Respondent does
not claim that it did not receive the resignations , and there is no evidence
that this procedural fading was the ground on which the Respondent de-
clined to honor the resignations at the time
8 The Respondent 's business manager ,' Ronnie Gray , counsel for the
Respondent, and the ' General Counsel all held the same view of the
second charge, that employees were prohibited from doing any work for
a nonsignatory contractor Each of the charges prefaced the quoted spe-
cific language with provisions of the constitution allegedly violated.
Article 17, Section 1(e) Violating the established union, collective
bargaining agreements and rules and regulations of any local union
relating to rates of pay, rules and working conditions
Article 17, Section 1 (h) Agreeing to perform any sheet metal work
covered by the claimed jurisdiction of this Association on a piece-
work basis , a lump sum basis , or any other basis except that provided
and specified by this Constitution and by the established and recog-
nized union agreements, rules and regulations of affiliated local
unions and councils governing the employment of members.
9 The joint exhibits also contained trial committee findings for each
person which noted the constitution article numbers allegedly violated,
the guilty finding, and the recommended fine The joint exhibits also con-
tained letters to each of those charged stating that the local had voted to
concur in the action of the trial committee and had informed them of the
fine, which ranged from $ 1000 to $6000
tor, they have initial responsibility to settle
that problem.
Williamson further testified that he had authority
to deal with these matters if they were not re-
solved by the superintendents and the complaining
employee or the employee's union job steward.10
Regarding his own position in grievance handling,
Williamson testified generally that
If it's a grievance on the jobsite, normally I
wouldn't get involved unless it became pretty
major. . . . If it 's just a jobsite grievance be-
tween our people and another contractor or
some of our employees, it would come back to
me if our superintendent couldn 't handle it,
yes.
Williamson affirmed that where a job was large
enough to have a union steward , the superintend-
ent would meet with the steward to resolve any
grievance at that level . If the grievance was not re-
solved at that level, the steward would take it to
the local union 's business manager, who would
meet at the jobsite with the superintendent and
Williamson . Williamson added that Owner
DeMoss, who is directly above Williamson , did not
normally get involved in the grievance handling.'
Williamson was asked about specific areas where
he and the superintendents might have resolved
grievances . Thus, Williamson testified about what
would happen if employees thought that there was
a dangerous condition at a worksite . He stated that
they would go to the' superintendent : "If it's a
problem we have, he [the superintendent ] has the
authority to correct the area . If it's something gen-
erated by the general contractor , he'll go to the
general contractor , yes." With regard to discipline,
Williamson testified that grievances involving disci-
pline of employees were the "responsibility of the
superintendent ." However , when asked about a hy-
pothetical grievance over a termination, William-
son stated that the superintendent "would provide
a justification for why ' he terminated him, but he
wouldn 't be the only one that handled the griev-
ance at that point as far as terminating an employ-
ee." When asked who would hear a first-step termi-
nation grievance , Williamson stated he could not
really answer the question because he had never
been in that situation.
10 We are recounting the evidence on this subject more fully than did
the judge, because after his decision issued, the Supreme Court issued its
decision in NLRB v. Electrical Workers IBEW Local 340, 481 U S 573,
586-588 ( 1987) The Court rejected the Board's "reservoir doctrine"
under which it was unnecessary to determine whether a supervisor pos-
sessed authority to engage in collective bargaining or adjust grievances
on behalf of the employer in order to find that he was an 8 (b)(1)(B) rep-
resentative See discussion infra
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Williamson was asked what types of grievances
he and the superintendents had handled. He testi-
fied that he had handled problems involving co-
ordination with other contractors (e.g., whose con-
tractors would work first, whose equipment would
be installed, or how many people DeMoss would
have working versus how many the other contrac-
tor would have working). Williamson stated, how-
ever, that he did not think he had ever handled any
matter where a representative of the local union
was presenting a problem under the contract.
When asked whether he was aware of any "par-
ticular grievance handling matter" in which super-
intendents were involved, Williamson testified,
"Not of any union nature, no, not that I can
recall." Williamson was then asked about nonunion
grievances handled by superintendents. He noted
that most of these were handled at the superintend-
ent's level" and reaffirmed that superintendents
had "grievance handling" authority in the, relevant
time period. On cross-examination, Williamson
could not remember any specific grievances in the
month before the strike but added,
You know, there's problems day to day with
the superintendents. You know, that's the
reason we have them out there, because I'm
not on the job every day. They're there to
settle the day to day problems. I don't always
know what problems come up.
Each of the alleged 8(b)(1)(B) representatives
also testified. Charles Gunn has been the shop su-
perintendent since 1978. Gunn testified that he had,
on rare instances, dealt with problems involving
the parties' collective-bargaining agreement. These
problems were "jurisdictional, things about who
was supposed to do which particular job," and
"were with people in the collective bargaining
agreement." Gunn stated that he had dealt with the
shop steward on one matter or another but that
grievances had not reached the level where a busi-
ness representative had to handle it. Gunn also ac-
knowledged that he had authority to handle safety
problems, and to take care of them.
Olen Glen Long testified that he had been given
the authority to handle complaints and grievances.
He remembered only one instance where he had
done so. This occurred under the same contract
that DeMoss had signed but while Long was em-
ployed by Universal Sheet Metal, the employer
preceding DeMoss. On that occasion, he consid-
ered an employee's complaint that a general con-
tractor's use of a nonunion subcontractor violated
the collective-bargaining agreement and conferred
with the steward and business agent.
Michael Hardison -has been a job superintendent
for several years. According to Hardison, if an em-
ployee on his project has a job-related problem,
"He goes to either the foreman - on that particular
job, or if we have a job steward he'll go to them,
and they'll come to me." Hardison also testified
that, "If [the foreman] can't straighten it out, [the
employee] comes to me. And between the two or
the three of us, we'll get it straightened out." Har-
dison stated that Project Manager Williamson gave
him the authority to straighten out grievances that
the foreman could not resolve. On the other hand,
when later asked if he ever processed any griev-
ances or worked with the Union in dealing with
grievance matters, Hardison answered, "no." He
subsequently affirmed, however, that this was be-
cause no grievances had been raised.
Joe Williamson testified that he had been a job
superintendent for about 18 months and that he has
the 'authority to and does handle problems that
rank-and-file employees bring to him. On the other
hand, when asked if he had "ever handled any
grievances . . . on behalf of the Company with the
local union," he answered, "no."
Claud Montgomery testified that he has been a
job superintendent for 3-1/2 years. In the year
ending just before the strike began he had been
working for DeMoss in Houston with Local 54
rather than in Ft. Worth with the Respondent,
Local 68. He testified that DeMoss had given him
authority to handle grievances and complaints of
employees and that he had exercised that authority.
He stated that he could recall particular union mat-
ters that he had handled in Houston, but had never
handled any grievances involving this Respondent.
II. ANALYSIS
A. Introduction
The questions before us are (1) whether Project
Manager Williamson and the five superintendents
are, in the words of Section 8(b)(1)(B) of the
Act,12 the employer's "representatives for the pur-
poses of collective bargaining or the adjustment of
grievances" and (2) if so, whether the Respondent
"restrained" or "coerced" their employer in its se-
lection of them for either of these purposes, in vio-
lation of Section 8(b)(1)(B).
ii Williamson did recall one example involving a large project where
the Company had "some problems" with other contractors on the
project. He stated that Superintendent Hardison and he had had discus-
sions with the mechanical contractor for whom they were working about
those problems
12 Sec 8(b)(1)(B) states "It shall be an unfair labor practice for a labor
organization or its agents-to restrain or coerce an employer in the
selection of his representatives for the purposes of collective bargaining
or the adjustment of grievances "
SHEET METAL WORKERS LOCAL 68 (DEMOSS) 1003
With respect to these six individuals, the judge
found that the Respondent violated Section
8(b)(1)(B) of the Act both by fining them for re-
signing their union membership and by fining them
for working in the period after their attempted res-
ignations for an employer engaged in' sheet metal
work that did not have a current collective-bar-
gaining agreement with the Respondent. We agree
with the judge that the Respondent violated Sec-
tion 8(b)(1)(B) through these actions, but we reach
this conclusion by somewhat different reasoning-
reasoning that takes account of the Supreme
Court's intervening decision in NLRB v. Electrical
Workers IBEW Local 340, 4531 U.S. 573 (1987).
In brief, Electrical Workers Local 340 requires us
to apply a more stringent test than the Board for-
merly applied to determine whether members
whom a union disciplines are employer representa-
tives within the meaning of Section 8(b)(1)(B) and
to define somewhat more narrowly the circum-
stances in which an 8(b)(1)(B) violation will be
found on the basis of union discipline of individuals
who are both union members and 8(b)(1)(B) repre-
sentatives. For the reasons that follow, we find that
the Respondent's conduct here is unlawful even
under the more stringent tests specified by the
Court in Electrical Workers Local 340.
B. The 8(b)(1)(B) Authority to Adjust Grievances
First, because the Court in Electrical Workers
Local 340 rejected the Board's "reservoir doc-
trine"-a theory under which an employer could
be regarded as subject to 8(b)(1)(B)' restraint or co-
ercion even with respect to supervisors who did
not currently possess authority on behalf of the em-
ployer to adjust grievances or engage in collective
bargaining-it is necessary to determine whether
the project manager and the five superintendents at
issue here possess either of the kinds of authority
specified in Section 8(b)(1)(B).13 We conclude that
the record supports a finding that at the time the
Respondent sought to impose fines on them, they
possessed authority to adjust grievances within the
meaning of Section 8(b)(1)(B).14
It is undisputed that the DeMoss Company had a
collective-bargaining agreement with the Respond-
ent that had been extended until April 30, and that
the Company and the Respondent were in negotia-
13 The theory behind the reservoir doctrine was that the employer was
coerced in his "selection" of 8(b)(1)(B) representative by virtue of certain
kinds of union coercion directed at supervisors because supervisors were
the "reservoir" from which an employer would most likely select its
8(b)(1)(B) representatives. See Electrical Workers Local 340, supra, 481
U S. at 587 fn. 9 and cases there cited
14 We adopt the judge's finding that none of the six functioned as a
"collective-bargaining" representative (as opposed to an adjuster of griev-
ances) as defined in Sec 8(b)(1)(13) of the Act
tions for a renewal agreement. Further, it is undis-
puted that Jim DeMoss, the company owner, did
not normally become involved in handling griev-
ances. Project Manager Williamson testified that a
grievance would have to be "pretty major" before
even he got involved. According to Williamson,
whose testimony was substantially corroborated by
that of the five superintendents, "as far as jobsite
problems, [the superintendents] have the initial re-
sponsibility and authority to settle them if they
can." Williamson and several of the superintend-
ents testified that the superintendents dealt with the
union job steward regarding such problems.
The Respondent argues, however, that 8(b)(1)(B)
authority was not established because the superin-
tendents could not identify particular grievances
that they had actually settled (other than some ref-
erences to jurisdictional disputes) and because they
seemed unfamiliar with the various formal steps of
the contractual grievance procedure. Those points
are not well taken.
First, because the question whether particular
kinds of work fall within one union's jurisdiction
rather than another's is almost invariably raised in
the context of jurisdictional provisions of collec-
tive-bargaining agreements, the Respondent is in-
correct in suggesting that in helping to resolve a
worksite jurisdictional dispute, a superintendent
would never be representing his employer in the
adjustment of a grievance. See Electrical Workers
IBEW Local 77 (Bruce-Cadet), 289 NLRB 516
(1988), enfd. 895 F.2d 1570 (9th Cir. 1990).
Second, the fact that superintendents resolve
grievances at a fairly low level-before they
become either particularly memorable or subject to
the formalities of higher steps of the grievance pro-
cedure-does not mean that the superintendents are
not resolving grievances as that term is used in
Section 8(b)(1)(B). As the Supreme Court has ob-
served in another context, "there is unlikely to be a
bright-line distinction between an incipient griev-
ance, a complaint to an employer, and perhaps
even an employee's initial refusal to perform a cer-
tain job that he believes he has no duty to' per-
form "15 An important interest that Congress was
protecting in Section 8(b)(1)(B) was an employer's
interest in having an individual of its own choosing
to represent it in dealings with the union that rep-
resents its employees. The employer's need for un-
coerced representation of its interests is of great
importance at the level at which grievances first
arise, since the employer's preferred interpretation
of the contract could be effectively thwarted by a
jobsite representative who "resolved" grievances
is NLRB v. City Disposal Systems, 465 U.S 822, 836 (1984).
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
simply by agreeing to whatever the union's job
steward proposed. Thus, the view that no real
grievance adjustment within the meaning of Sec-
tion 8(b)(1)(B) could occur until a dispute reached
the level of a formal meeting between an employer
representative and the Respondent's business agent
simply ignores the realities of the workplace.
It is apparent from the record that DeMoss in-
vested the superintendents with the authority and
the responsibility to settle jobsite problems, and
that they were the only persons whom DeMoss
had available to represent it in day-to-day dealings
with the Respondent's job stewards over griev-
ances arising at the jobsite. It is also clear that
Project Manager Williamson had the authority and
responsibility to handle the "major" problems not
resolved by the superintendents. We conclude that
all these individuals thus clearly possessed the au-
thority to represent DeMoss in the adjustment of
grievances within the meaning of Section 8(b)(l)(B)
of the Act.
C. Restraint or Coercion of the Employer
In finding that the Respondent violated Section
8(b)(1)(B) through the fines it imposed on Project
Manager Williamson and the five superintendents,
the judge considered the sets of fines as an integrat-
ed course of conduct. That is, he considered the le-
gality of the fines imposed on the men for working
during the strike in light of the fact that these sanc-
tions were imposed for a period after the men had
submitted resignations that the Respondent not
only declined to accept but that it sought; to penal-
ize with separate fines. In support of his finding of
violations, the judge relied on, among other cases,
Neufeld Porsche-Audi, supra, and Electrical Workers
IBEW Local 73 (Chewelah Contractors), 231 NLRB
809 (1977), enf. denied 621 F.2d 1035 (9th Cir.
1980). While we agree that the judge correctly
considered all the fines together in assessing the
lawfulness of the Respondent's conduct, we do not
rely on either Neufeld Porsche Audi or Chewelah
Contractors in concluding that the Respondent vio-
lated Section 8(b)(1)(B) with respect to these fines.
1. In Neufeld Porsche-Audi, the issue posed was
whether the union respondent in that case violated
Section 8(b)(1)(A) of the Act by restricting the em-
ployees' right to resign their union memberships and
by imposing fines for conduct in which employees
engaged after they had sought to resign. The
Board found a violation. The judge concluded in
the present case, however, that even though that
case concerned only employees, the Board must
have intended that "all union members-whether
rank-and-file or supervisory or unemployed-may
resign from a union at any time without restric-
tion."
This reading of Neufeld Porsche Audi is incorrect.
The holding of that case, which was essentially ap-
proved by the Supreme Court in Pattern Makers
League v. NLRB, 473 U.S. 95 (1985), was based on
the employees' Section 7 right to refrain from union
activities and their right to voluntary unionism im-
plicit in Section 8(a)(3). Neufeld Porsche-Audi, 270
NLRB at 1333; Pattern Makers, 473 U.S. at 104-
105. The Supreme Court has repeatedly interpreted
the Taft-Hartley amendments as removing supervi-
sors from the protections accorded employees by
the Act. "Specifically, Congress in 1947 amended
the definition of `employee' in Section 2(3), 29
U.S.C. 152(3), to exclude those denominated super-
visors under Section 2(11), 29 U.S.C. 152(11),
thereby excluding them from the coverage of the
Act." Florida Power & Light Co. v. Electrical Work-
ers IBEW Local 641, 417 U.S. 790, 807 (1974).
Accord: Beasley v. Food Fair of North Carolina, 416
U.S. 653, 654 (1974). Thus, Section 8(b)(1)(A) does
not protect the right of the supervisors in this case
to resign from the Respondent. Hence, the fines
imposed on the project manager and the five super-
intendents can be deemed unlawful only if it is
shown that the fines were calculated to coerce and
restrain DeMoss in the selection of its 8(b)(1)(B)
representatives. As the Supreme Court observed in
Electrical Workers Local 340, 481 U.S. at 594: "The
statute itself reveals that it is the employer, not the
supervisor-member, who is protected from coer-
cion by the statutory scheme."
2. We find, for the following reasons, that under
the circumstances of this case the combination of
fines imposed by the Respondent on Project Man-
ager Williamson and the five superintendents con-
stituted restraint and coercion of their employer,
DeMoss, within the meaning of Section 8(b)(1)(B)
of the Act.16 In so finding, we do not rely, as did
the judge, on Chewelah Contractors, supra, because
the Supreme Court in Electrical Workers Local 340
has since reversed a Board decision that essentially
followed Chewelah. The present case is, however,
distinguishable from Electrical' Workers Local 340
on factual grounds that make a finding of a viola-
tion here entirely consistent with the Court's con-
struction of Section 8(b)(1)(B).
In Electrical Workers' Local 340, the Court con-
strued its earlier decision in American Broadcasting
Co. v. Writers'Guild, 437 U.S. 411 (1978), as hold-
ing that a prerequisite to the finding of an
16 We reverse the judge's findings that the Respondent violated the
Act by suspending Project Manager Williamson and the superintendents
for failure to pay dues, because the General Counsel did not allege or
argue that the suspensions were unlawful
SHEET METAL WORKERS LOCAL 68 (DEMOSS) 1005
8(b)(1)(B) violation is "a factual finding that a
union's sanction will adversely affect the employer-
representative's performance of collective-bargain-
ing or grievance-adjusting duties." 481 U.S. at 585.
Noting that in the case before it, the union neither
had nor sought any collective-bargaining relation-
ship with the employer of the supervisor-members
whom it had disciplined, the Court deemed the
possibility of any effect on their performance of
8(b)(1)(B) duties to be negligible. Id. at 589-590.
Indeed, the Court noted that because there was no
concrete prospect of the union's representing em-
ployees whose grievances the supervisor-members
might adjust, the union lacked even an incentive to
affect their performance of 8(b)(1)(B) duties. Id. at
590. Thus, the Court held that union discipline "di-
rected at supervisor-members without Section
8(b)(1)(B) duties, working for employers with
whom the union neither has nor seeks a collective-
bargaining relationship, cannot and does not ad-
versely affect the performance of Section 8(b)(1)(B)
duties" and that, hence, such union discipline could
not be found to "coerce an employer in the selec-
tion of Section 8(b)(1)(B) representatives." 481 U.S.
at 595-596.
In further rejecting the Board's argument that
union fines imposed in order to pressure supervi-
sors to give up their jobs with employers who had
no contractual relationship with the union did in
fact coerce those employers by threatening to de-
prive them of the services of their selected repre-
sentatives, the Court emphasized several points. It
acknowledged that one of the primary` purposes of
Section 8(b)(1)(B) was "to prevent a union engaged
in a long-term relationship with an employer from
dictating the latter's choice of representative." Id.
at 591. It further acknowledged that some forms of
union discipline might make union members less
willing to serve as supervisors, but it declined to
find that "every union rule that affects a union
member's willingness to serve as a supervisor could
be prohibited by a provision as narrow in scope as
Section 8(b)(l)(B)." Id. at 593 (emphasis added). In
particular, it rejected any argument "that unions
must both accept supervisor-members and grant
them immunity from enforcement of uniform
rules." Id. at 594. The Court noted that an employ-
er had a ready defense against any coercion result-
ing from union discipline imposed on a supervisor-
member that might pressure that individual into
ceasing to function as the employer's 8(b)(1)(B)
representative: "The employer may order its repre-
sentatives to leave the union immediately and there
is no barrier to a supervisor-member's obedience to
that order." Id. at 595.
As explained above, the judge was mistaken in
believing that Section 8(b)(1)(A), as construed in
Pattern Makers, granted supervisors any right to
resign union membership in the face of union re-
strictions on resignation. The Supreme Court in
dictum in Electrical Workers Local 340, supra,
seems to have made a similar erroneous statement.
Nonetheless, the Court's express reliance on the as-
surance that such a right to resign existed, requires
us to consider whether, at least under some circum-
stances, a union's attempt to restrict resignations of
individuals possessing grievance adjustment or col-
lective-bargaining authority may indeed coerce the
employer within the meaning of Section 8(b)(1)(B).
In the present case, it would appear that such co-
ercion existed. Whether at DeMoss' direction or
not, the project manager and the five superintend-
ents sought to avail themselves of the option the
Court in Electrical Workers Local 340 thought was
open to them-to resign their union membership so
that they would not be subject to union rules re-
quiring that they cease all work for DeMoss, in-
cluding their 8(b)(1)(B) functions. By treating their
resignations as nullities and continuing to apply
union rules to them, the Respondent openly sought
to deprive their Employer of the services of its
8(b)(1)(B) representatives at a time when the Re-
spondent was serving as the collective-bargaining
representative of employees whose grievances
those individuals would adjust once the strike was
over. And, of course, as in ABC, supra, the coer-
cion, if successful, would also deprive the Employ-
er of the grievance-adjustment services of its
8(b)(1)(B) representatives with respect to any em-
ployees working during the strike.17 See Electrical
Workers Local 340, 481 U.S. at 590-591 fn. 14,
citing ABC, supra, 437 U.S. at 437-438 fin. 37.
In short, we find this case distinguishable from
Electrical Workers Local 340 in at least three signifi-
cant respects. First, in this case the supervisors pos-
sessed 8(b)(1)(B) authority. Second, the Respondent
continued to have a collective-bargaining relation-
ship with the Employer covering employees whose
grievances these supervisors had authority to
adjust. Third, the Respondent was not faced with
supervisors who sought to enjoy union membership
while remaining immune from union rules. Indeed,
they submitted their resignations pursuant to the
Respondent's constitutional provision. The Re-
spondent nonetheless sought to prevent the super-
visors from relinquishing their membership and
thereby made it impossible for them to escape the
union rules it subsequently imposed that would pre-
17 We note that, at the time of the heanng, DeMoss employed about
35 persons
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vent their continued functioning as their Employ-
er's 8(b)(1)(B) representatives.
On the basis of this record, we conclude that a
factual finding is warranted that the Respondent's
sanctions-the fines imposed for resignations and
for the postresignation conduct of working for
DeMoss during the strike-will adversely affect
the performance by the project manager and the
five superintendents of grievance-adjustment duties.
Accordingly, we find that those fines, considered
together, constituted restraint and coercion of the
Employer within the meaning of Section 8(b)(1)(B)
of the Act.18
AMENDED CONCLUSIONS OF LAW
By imposing fines for resigning union member-
ship and for subsequently returning to work for the
DeMoss Company on employees Shank, Belota,
and Mann, the Respondent violated Section
8(b)(1)(A) of the Act.
By ` imposing a combination of fines on Project
Manager Williamson and Superintendents Gunn,
Williamson, Hardison, Long, and Montgomery, for
attempting to resign union membership and for
working for the DeMoss Company, the Respond-
ent violated Section 8(b)(1)(B) of the Act.
REMEDY
Having found that the Respondent violated Sec-
tion 8(b)(1)(A) by fining the statutory employees
for resigning from union membership and for their
postresignation work for their Employer; and
having found that the Respondent violated Section
8(b)(1)(B) by fining the Employer's representatives
for resigning from union membership and for
working for the Employer in any capacity, we
shall order that it cease and desist and take certain
affirmative action necessary to effectuate the poli-
cies of the Act including the refund of any moneys
paid as a result of the unlawful fines, with interest
rs Because, as explained above, we find no basis in the Act for any
right to resign conferred directly on supervisors, we do not hold that a
union can never impose restrictions on a supervisor 's right to resign In
each case , the totality of, the union 's conduct must be assessed for its
impact on the employer's selection of its representatives for the purposes
of collective bargaining or the adjustment of grievances Further, nothing
in this opinion would prevent a union from fining current members for
performing more than a minimal amount of bargaining unit work during
a strike even if the members possess 8 (b)(1)(B) authority Florida Power,
supra, Operating Engineers Local 501 (Golden Nugget), 287 NLRB 674
(1987), enfd. sub nom Rasmussen v NLRB, 875 F 2d 1390 (9th Cir.
1989)
Therefore, contrary to the dissent's implication, we do not hold that
"any" discipline imposed on an employer's representative for grievance
adjustment after he resigns violates Sec 8(b)(l)(B) Rather, it is the par-
ticular combination of conduct present in this case that we find unlaw-
ful-treating the representatives ' resignations as nullities and then fining
them both for attempting to resign and for working for their Employer in
any capacity In these circumstances , we cannot agree with the dissent's
conclusion that the "fines were not related to the superintendents' per-
formance of grievance adjustment duties "
computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). Fi-
nally, we shall order the Respondent to cease and
desist from maintaining the restrictions on resigna-
tion found invalid and to remove the provision
from its governing documents. Auto Workers Local
73 (McDonnell Douglas), 282 NLRB 466 (1986).
ORDER
The National Labor Relations Board orders that
the Respondent, Sheet Metal Workers International
Association, Local Union 68, Ft. Worth, Texas, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Failing and refusing to give effect to employ-
ees' valid resignations from union membership.
(b) Restraining or coercing employees who have
resigned from, and are no longer members of, the
Respondent Union in the exercise of rights guaran-
teed them by Section 7 of the Act by filing intraun-
ion charges against them, subjecting them to trial
or imposing court-collectible fines against them, be-
cause of their valid resignations from the Union, or
because of their postresignation conduct in continu-
ing to work at the DeMoss Company, during the
strike that began on May 1, 1984.
(c) Maintaining or giving effect to the following
rule of the constitution and ritual of the Sheet
Metal Workers' International Association and Af-
filiated Local Unions, State, District and Provincial
Councils, to the extent it provides:
Any member in good standing who has paid
all dues and financial obligations may sever his
connections by written resignation mailed to
the financial secretary-treasurer of the local
union with which he is affiliated by certified
or registered mail. Resignations 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.
(d) In any like or related manner restraining or
coercing employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
(e) Restraining or coercing any employer in the
selection of representatives for the purpose of ad-
justment of grievances, by filing intraunion charges
against those representatives, subjecting them' to
trial, and imposing court-collectible fines against
them, because they attempted to resign from union
membership and worked for the DeMoss Compa-
ny, during the strike that began on May 1, 1984.
SHEET METAL WORKERS LOCAL 68 (DEMOSS) 1007
(f) In any like or related manner restraining or
coercing any employer in the selection of repre-
sentatives for the purpose of the adjustment of
grievances.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Remove from its governing documents the
portion of the constitution and ritual set forth
above.
(b) Rescind the fines imposed on William H.
Shank Jr., James L. Belota, and Loy R. Mann be-
cause of their resignations from the Union and be-
cause of their postresignation work for the DeMoss
Company, and refund to them any moneys they
may have paid as a result of those fines, with inter-
est, as indicated in the remedy section.
(c) Rescind the fines imposed on Dennis Wil-
liamson , Charles Gunn, Olen Glen Long, Michael'
Hardison, Joe Williamson, and Claud Montgomery
in 1984 for attempting to resign from union mem-
bership and for working for the DeMoss Company,
and refund to them any moneys they may have
paid as a result of such fines, with interest, as indi-
cated in the remedy section.
(d) Remove from its records any references to
the fines described above in paragraphs 2(b) and (c)
that were imposed against the above-named em-
ployees and employer representatives and inform
them, in writing, that the action has been taken.
(e) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all records necessary to analyze the amounts
due under the terms of this Order.
(f) Post at, its business office and its meeting and
hiring halls copies of the attached notice marked
"Appendix." 19 Copies of the notice, on forms pro-
vided by the Regional Director for Region 16,
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 customari-
ly posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(g) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by the
DeMoss Company, if willing, at all places where
notices to employees are customarily posted.
19 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."
(h) Notify the Regional Director in Writing
within 20 days from the date of this Order, what
steps Respondent has taken to comply.
MEMBER CRACRAFT, dissenting in part.
While I agree with the majority's conclusion that
the Respondent violated Section 8(b)(1)(B) by
fining statutory Supervisor and Grievance Adjuster
Dennis Williamson, I do not agree the Respondent
violated Section 8(b)(1)(B) by fining Supervisors
and Grievance Adjusters Gunn, Hardison, Long,
Montgomery, and Joe Williamson.
These five supervisors were fined for' working
during the Respondent's strike. They were not
fined for the performance of their grievance adjust-
ment responsibilities. Unlike the majority, in these
circumstances I find the extent to which the super-
visors performed more than a minimal amount of
rank-and-file work controlling in determining
whether the Respondent's fines violated Section
8(b)(l)(B). While the fact that the supervisors re-
signed before the Respondent's strike is clearly rel-
evant to whether the Respondent can obtain court
enforcement of the- fines, it is simply irrelevant to
an 8(b)(1)(B) analysis. Like the majority, I sympa-
thize with the supervisors' plight. I cannot, howev-
er, join the majority in expanding Section
8(b)(1)(B)'s scope beyond the clear parameters the
Supreme Court set forth in Florida Power & Light
Co. v. Electrical Workers IBEW Local 6411 and
NLRB v. Electrical Workers IBEW Local 340.2
1.
This case involves the Respondent's reaction to
those of its members who attempted to resign and
later worked during its strike against the Employ-
er.3 Project Manager Dennis Williamson and Job
Superintendents Gunn, Hardison, Long, Montgom-
ery, and Joe Williamson4 belonged to the Respond-
ent before April 19845 pursuant to a provision in
the Respondent's constitution and ritual that per-
mitted supervisors to become members. The Re-
1417 U'S 790 (1974)
2 481 U.S. 573 (1987).
2 I join the majority in adopting the judge's conclusion that the Re-
spondent violated Sec 8(b)(1)(A) by fining employees Shank, Belota, and
Mann for resigning their union memberships and for returning to work
for the Employer after their resignations and during the Respondent's
strike These employees had resigned from union membership before the
Respondent's strike I also agree with my colleagues' reversal-in the ab-
sence of a complaint allegation-of the judge's findings that the Respond-
ent violated Sec 8(b)(1)(A) by suspending these three employees from
membership for failing to pay union dues after their resignations from the
Respondent
4 I join the majority in finding that these six individuals are employer-
representatives for the purpose of grievance adjustment within the mean-
ing of Sec 8(b)(1)(B)
5 All dates are in 1984 unless otherwise indicated
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent limited its members' right to resign with
the following constitution and ritual provision:
Any member in good standing who has paid
all dues and financial obligations may sever his
connections by written resignation mailed to
the financial secretary-treasurer of the local
union with which he is affiliated by certified
or registered mail. Resignations 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.
is unit, or rank-and-file, work. Hardison testified
that he did detailing and drafting work and draw-
ing during the strike, all of which is also rank-and-
file work according to Business Manager Gray.
On May 16, the Respondent brought two sets of
intraunion charges against the six supervisors. After
a trial (which they did not attend), the Respondent
levied fines ranging from $4000 to $9500 against
each of them for attempting to resign union mem-
bership and continuing to work for the Employer
during the strike. 8 Finding their attempted resigna-
tions invalid, the Respondent also later suspended
them for failing to pay dues after they attempted to
resign.9
Between April 4 and 13 or 14, each of the supervi-
sors attempted to resign6 and they ceased paying
dues.7
On April 30, the Respondent's collective-bar-
gaining agreement with the Employer expired. Be-
cause the parties had failed to reach agreement on
a successor contract by that time, the Respondent's
membership voted to and did strike. (The Respond-
ent did not, however, picket the Employer's work-
site.)
Each of the supervisors worked during the
strike. The judge erroneously stated, in footnote 11
of his decision, that no one contended that the su-
pervisors performed unit or nonsupervisory work
during the strike. In fact, the Respondent did con-
tend that the supervisors performed rank-and-file
work and the parties litigated that issue at the hear-
ing.
There is no evidence that Dennis Williamson
performed any rank-and-file work during the strike.
He instead performed only his regular supervisory
duties. Gunn, however, testified that he "work[ed]
with tools" approximately "once a month." Long
testified that he worked with tools "[a] significant
amount of time" since the strike began. Montgom-
ery testified that he has worked with tools "quite
consistently" since the strike began, and Joe Wil-
liamson testified that he worked with tools "75 per-
cent of [his] time" during the strike. The Respond-
ent's business manager, Ronnie Gray, testified that
"work[ing] with the tools of the sheet metal trade"
6 The Respondent contends that three of the resignations were invalid
because they were not sent by registered mail One (Hardison's) was un-
signed
7 In sec III , A, par 2 of his decision, the judge erroneously stated
"Nor is there any contention that any of the resignations was in anticipa-
tion of [mtraunion ] charges or during pendency of charges or during a
strike or lockout " The Respondent did in fact make those contentions at
the hearing. Nonetheless, I find the Respondent's contentions without
merit There is no evidence the members had reason to anticipate that
intraunion charges would be preferred against them and, as the judge ob-
served, the strike had not commenced when the members attempted to
resign
II.
The judge found the supervisors' resignations
valid pursuant to the Respondent's constitution and
ritual. Having erroneously found that no one con-
tended that the supervisors performed rank-and-file
work during the strike, the judge nonetheless con-
cluded that the supervisors, "as validly resigned
Union members . . . were at liberty to perform
unit, nonsupervisory, or `struck' work without ret-
ribution from their former Union calculated to
impair their continued usefulness to and utilization
by their employer as its grievance-adjustment rep-
resentatives." Without ever considering the type of
work the supervisors performed during the strike,
the judge concluded that fming the supervisors for
performing "struck work" was, in light of the su-
pervisors' resignations, "an empty drumhead proce-
dure" that violated Section 8(b)(1)(B).
The judge also found that the Respondent's fines
necessarily coerced the supervisors, making them
"quail or be less willing to serve," and thus limited
the pool from which the Employer might select its
grievance adjusters.
Finally, the judge concluded that the supervisors
had a statutory right to resign pursuant to the
Board's decision in Neufeld Porsche Audi, 10 which
found such a right for statutory employees. He
thus concluded that, by fming the supervisors for
"exercising their right to resign from the Union,"
the Respondent also violated Section 8(b)(1)(B).
s The Respondent technically based one of the charges on, inter alia,
"accept[ing] employment and continu[ing] to be employed by an employ-
er engaged in sheet metal work that does not have a collective bargaining
agreement" with the Respondent The Respondent contended at the hear-
ing that the charge "encompass[ed]" their having performed "struck
work."
9 l agree with my colleagues' reversal of the judge's findings that the
Respondent violated the Act by suspending the six supervisors, on the
ground that the General Counsel did not allege or argue that the suspen-
sions were unlawful
10 Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330
(1984)
SHEET METAL WORKERS LOCAL 68 (DEMOSS) 1009
I agree with my colleagues that our Act does
not provide supervisors with a right to resign. Ac-
cordingly, I would find that the Respondent did
not violate Section 8(b)(l)(B) for fining the super-
visors for attempting to resign. Contrary to my col-
leagues and the judge, however, I find that "the
only relevant inquiry" in determining whether the
Respondent violated Section 8(b)(1)(B) by fining
the supervisors for working during the strike is,
"[W]hat did the supervisor[s] . . . do during the
employer-union, dispute[?]"' '
A.
In Florida Power & Light,12 the Supreme Court
rejected the Board 's conclusion that disciplining a
supervisor violates Section 8(b)(1)(B ) even if the
supervisor performs only rank -and-file work.13 The
Court rejected the Board's theory that Section
8(b)(1)(B) guarantees employers their supervisors'
loyalty and thus forbids unions from disciplining
supervisors for any act in the employer 's interest.
Section 8(b)(1)(B), the Court concluded, is not
nearly so broad. The Court observed that the stat-
ute by its terms proscribes union restraint or coer-
cion of employers only "in the selection of his rep-
resentative for the purposes of collective bargain-
ing or the adjustment of grievances." The Court
also reviewed the legislative history and conclud-
ed, "Congress was exclusively concerned with
union attempts to dictate to employers who would
represent them in collective bargaining and griev-
ance adjustment."14 The Court found the conclu-
sion "inescapable" that disciplining supervisors vio-
lates Section 8(b)(1)(B) "only when that discipline
may adversely affect the supervisor's conduct in
performing the duties of, and acting in his capacity
as, grievance adjuster or collective bargainer on
behalf of the employer ." 1 s Because the supervisors
in Florida Power & Light were disciplined for per-
forming rank-and-file work during the strike, and
had performed no collective bargaining or griev-
ance adjustment, the union had not restrained the
11 Columbia Typographical Union 101 (Washington Post), 242 NLRB
1079, 1080 (1979)
12 Supra , 417 U S 790
18 Id. at 803
Sec 8(b)(1)(B) states
It shall be an unfair labor practice for a labor organization or its
agents-(l) to restrain or coerce (B) an employer in the selec-
tion of his representatives for the purposes of collective bargaining
or the adjustment of grievances
14 417 U.S at 803
15 Id at 804-805 In Electrical Workers Local 340, supra , the Court
quoted this language with approval, terming it an adverse-effect' test "
employer-through its supervisors- in selecting its
collective bargainers or grievance adjusters.-16
Subsequently, in NLRB v. Electrical Workers
IBEW Local 340, 481 U.S. 573 (1987), the Court
reaffirmed its restrictive construction of Section
8(b)(1)(B), holding that "discipline of a supervisor-
member is prohibited under Section 8(b)(1)(B) only
when that member is engaged in Section 8(b)(1)(B)
activities-that is, collective bargaining , grievance
adjustment, or some other closely related activity
(e.g., contract interpretation , as in Oakland Mail-
ers), 172 NLRB 2173 (1968)."
As indicated above, in concluding that the Re-
spondent violated Section 8(b)(1)(B) by fining the
supervisors for working during the Respondent's
strike, my colleagues rely heavily on the fact that
the supervisors had already resigned . Surely the
fact that the Respondent purported to discipline
the supervisors for postresignation conduct coerced
the supervisors and, perhaps, the Employer. But it
does not follow that the discipline also necessarily
coerced the Employer in its selection of collective
bargainers or grievance adjusters.
As Florida Power & Light makes clear, discipline
imposed on supervisor-members who performed
solely rank-and-file work does not coerce an em-
ployer in its selection of collective bargainers or
grievance adjusters . That discipline does not
become coercive within the manner proscribed by
the statute simply because the supervisor who per-
formed solely rank-and-file work previously re
signed from the union.
B.
In Florida Power & Light, some of the parties
argued to the Court that permitting unions to disci-
pline supervisor-members for performing rank-and-
file work will deprive employers of those supervi-
sors' loyalty.17 In response, the Court emphasized
that the employer could avoid that problem by in-
sisting that its supervisors refrain from union mem-
bership.
16 The Court in Florida Power & Light "assume[d] without deciding"
that the Board 's decision in San Francisco-Oakland Mailers Union 18
(Northwest Publications), 172 NLRB 2173 ( 1968), was "within the outer
limits" of its 8(b)(1)(B) test 417 U S at 805 In Oakland Mailers, the
Board held that a union may restrain or coerce an employer in the selec-
tion of its bargaining representatives indirectly, in that case , the union co-
erced the employer by disciplining the employer 's foremen-supervisors
for the manner in which they interpreted the union and employer's con-
tract.
That Respondent [Union] may have sought the substitution of atti-
tudes rather than persons , and may have exerted its pressures upon
the Charging Party [Employer] by indirect rather than direct means,
cannot alter the ultimate fact that pressure was exerted here for the
purpose of interfering with the Charging Party's control over its rep-
resentatives Realistically, the Employer would have to replace its
foremen or face de facto nonrepresentation by them
Oakland Mailers, supra , 172 NLRB at 2173.
17 417 U.S at 805-806
1010 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
One may argue that an employer's right to insist
that its supervisors refrain from union member-
ship-and the fact that supervisors may themselves
resign-are essential to the balance the Supreme
Court struck in Florida Power & Light. Unions may
lawfully discipline supervisor-members for per-
forming rank-and-file work because employers may
remove their supervisors (and supervisors may
remove themselves) from the "shooting gallery" al-
together. Thus, the argument runs, the Board must
protect that balance by declaring that any action
against a supervisor for conduct after the supervi-
sor resigns, regardless of the reason for which the
discipline was imposed, violates Section 8(b)(1)(B).
This argument, however, is no longer viable in
light of the Supreme Court's Electrical Workers de-
cision. The Court's opinion makes clear that the
Florida Power adverse-effect test focuses exclusively
on whether the supervisor was disciplined for be-
havior related to the performance of 8(b)(1)(B)
duties, not on whether the supervisor had previous-
ly resigned. For "an adverse effect on future Sec-
tion 8(b)(1)(B) activities exists only when an em-
ployer-representative is disciplined for behavior
that occurs while he or she is engaged in Section
8(b)(1)(B) duties-that is, `collective bargaining or
grievance adjustment, or . . . any activities related
thereto."' 18 Accordingly, under this test, whether
the supervisor resigned is irrelevant; the key ques-
tion is: Was the employer-representative disciplined
for performing 8(b)(1)(B) duties?
Moreover, my conclusion does not in any event
disturb the balance the Court struck in Florida
Power & Light. The conclusion that a union does
not violate Section 8(b)(1)(B) by disciplining a re-
signed supervisor for performing rank-and-file
work does nothing to validate the union's discipline
or otherwise render the discipline lawful. A super-
visor plainly has a Federal common-law right to
resign from union membership and thus any disci-
pline imposed on the supervisor for postresignation
rank-and-file work is clearly unenforceable in
court.
While my conclusion would not disturb a super-
visor's Federal common-law right to resign, my
colleagues' conclusion may in fact limit the scope
of relief available to a supervisor subjected to re-
peated discipline for postresignation rank-and-file
work. By deeming the Union's conduct an unfair
labor practice, my colleagues have very likely
denied the supervisor-or the employer on the su-
pervisor's behalf-from individually seeking a state-
or Federal-court injunction.'s
's Electrical Workers Local 340, supra , 481 U S at 582
s See San Diego Building Trades Council v Garman, 359 US 236
(1959), Writers Guild v Superior Court, 53 Cal App 3d 468, 126 Cal Rptr
C.
Having found that a supervisor's resignation does
not determine whether the union's discipline violat-
ed Section 8(b)(1)(B), I return to my original prop-
osition: "[T]he only relevant inquiry is[,] [W]hat
did the supervisor[s] . . . do during the employer-
union dispute[?]"2° Pursuant to Florida Power &
Light, the Respondent's disciplining the supervisor-
grievance adjusters for working during its strike
did not violate Section 8(b)(1)(B) if the supervisors
performed only rank-and-file work.
In this case, the five job superintendents per-
formed both rank-and-file and supervisory work
during the strike. A Board plurality in Washington
Post21 held that disciplining 8(b)(1)(B) supervisors
who performed both rank-and-file and supervisory
work during a strike violates Section 8(b)(1)(B)
only if the supervisors performed no more than a
minimal amount of rank-and-file work.22 For the
reasons set forth in that decision, I also adopt that
standard.
Applying these principles to the facts of this
case, I find the Respondent violated Section
8(b)(1)(B) by fining Project Manager Dennis Wil-
liamson , but not by fining Job Superintendents
Gunn, Hardison, Long, Montgomery, or Joe Wil-
liamson . As discussed above, Dennis Williamson
performed no rank-and-file work during the strike.
The other supervisors, however, performed rank-
and-file work ranging from "once a month" to "75
percent" of the time or, in Hardison's case, per-
formed a number of rank-and-file tasks that support
the conclusion that his participation in rank-and-file
work was "more than minimal ." In sum, the Re-
spondent' s fines were not related to the superin-
tendents' performance of grievance-adjustment
duties, and therefore could not have adversely af-
fected that performance. Accordingly, I find that
the fines imposed by the Respondent on the five
supervisors did not restrain or coerce the Employ-
er in the selection of its 8(b)(1)(B) representatives.
498, 91 LRRM 2603 (1975) (employer-representatives' action for declara-
tory relief and damages against union for prohibiting them from perform-
ing supervisory work for employers held preempted, Board, whose deci-
sion was later affirmed by the Supreme Court, had found that the union
violated Sec. 8(b)(1)(B) Writers Guild (American Broadcasting Cos), 217
NLRB 957 (1975), enf. denied 547 F 2d 159 (2d Cir. 1976), revd 437 U S
411 (1978)
20 Washington Post, supra, 242 NLRB at 1080
21 Id at 1079
22 Id at 1080
SHEET METAL WORKERS LOCAL 68 ( DEMOSS) 1011
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail and refuse to give effect to
employees' valid resignations from membership.
WE WILL NOT restrain or coerce employees who
have resigned from, and are no longer members of
the Union, in the exercise of rights guaranteed
them by Section 7 of the Act by not giving effect
to their valid resignations from union membership;
by filing intraunion charges against them, subject-
ing them to trial and imposing court-collectible
fines against them, because of their valid resigna-
tions from the Union, or because of their postresig-
nation conduct in continuing to work at the
DeMoss Company, during the strike that began on
May 1, 1984.
WE WILL NOT restrain or coerce any, employer
in the selection of representatives for the purpose
of adjustment of grievances, by filing intraunion
charges against those representatives, subjecting
them to trial, and imposing court-collectible fines
against them, because they attempted to resign
from union membership and because they worked
for the DeMoss Company, during the strike that
began on May 1, 1984.
WE WILL NOT maintain or give effect to the fol-
lowing rule of the constitution and ritual of the
Sheet Metal Workers' International Association to
the extent it provides:
Any member in good standing who has paid
all his dues and financial obligations may sever
his connections by written resignation mailed
to the financial secretary-treasurer of the local
union with which he is affiliated by certified
or registered mail. Resignations 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 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;
and WE WILL NOT in any like or related manner re-
strain or coerce any,employer in the selection of
representatives for the purposes of adjustment of
grievances.
WE WILL remove from our governing docu-
ments the portion of the constitution and ritual set
forth above.
WE WILL rescind the fines imposed on William
H. Shank Jr., James L. Belota, and Loy R. Mann
because of their resignations from the Union and
because of their 'postresignation work for the
DeMoss Company, and refund to them any moneys
they may have paid as a result of those fines, with
interest.
WE WILL rescind the fines imposed on Dennis
Williamson, Charles Gunn, Olen Glen Long, Mi-
chael Hardison, Joe Williamson, and Claud Mont-
gomery in 1984 for attempting to resign from union
membership and for working for the DeMoss Com-
pany, and refund to them any moneys they may
have paid as a result of such fines, with interest.
WE WILL remove from our records any refer-
ences to the fines described above imposed against
the above-named employees and employer-repre-
sentatives and inform them, in writing, that this
action has been taken.
SHEET METAL WORKERS INTERNA-
TIONAL ASSOCIATION, LOCAL UNION
68
Edward B. Valverde, Esq., for the Acting General Coun-
sel.
Robert W. Rickard, Esq. (Messrs. Wheat & Rickard, Attor-
neys), and Ronnie W. Gray, of Fort Worth, Texas, for
the Respondent.
DECISION
Introductory Statement: Issues
STANLEY N. OHLBAUM Administrative Law Judge.
These proceedings under the National Labor Relations
Act (the Act)' were litigated before me in Fort Worth,
Texas, on August 20-21, 1984, with all parties represent-
ed throughout by counsel' afforded full opportunity to
present evidence and contentions, as well as to file briefs.
The basic issues presented are whether Respondent
Union violated (1) Section 8(b)(1)(A) of the Act through
imposing intraunion disciplinary measures against three
employees who had resigned from membership in the
Union and (2) Section 8(b)(l)(B) by imposing such disci-
pline against six grievance-adjusting supervisors who had
resigned from the Union.
1 Judge Ohlbaum prepared the decision in this case exactly as it now
appears prior to his death on October 31, 1984 In a telephonic confer-
ence call held on December 7, 1984, counsel for the Respondent and for
the General Counsel agreed that I (Chief Administrative Law Judge
Melvin J Welles) should issue the decision as written, over my signature
Consolidated Cases 16-CB-2370-3, -4, and -5. consolidated complaint
issued July 12, growing out of charges filed June 5, 1984. Case 16-CB-
2385 complaint issued July 25, growing out of charge filed July 3, 1984.
2 All Charging Parties were represented by counsel for NLRB Acting
General Counsel
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Records and briefs having been carefully considered,
on the basis thereof and my observation of the testimoni-
al demeanor of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
At all material times, The DeMoss Company, Inc.
(DeMoss), a Texas corporation located in Fort Worth,
Texas, has been and is engaged in the construction indus-
try as a contracting fabricator and installer of HVAC
ductwork as well as a commercial construction remo-
deler. During the 12 months immediately antedating issu-
ance of the complaints , in that business DeMoss pur-
chased and received at its location , directly in interstate
commerce from places outside the State of Texas, goods
and materials valued in excess of $50,000.
I find that at all material times Demoss has been and is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7), and Respondent Umon a
labor organization as defined by Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Facts Common to All Cases
The controlling facts have been stipulated or are in
large part undisputed or essentially uncontested. Al-
though these basic facts, applicable to all cases here, will
be set forth at the outset, it should be kept in mind that
two separate types of cases are involved-one involving
Section 8(b)(1)(A) and the other Section 8(b)(1)(B) of the
Act-and that they will be considered separately.
Between April 4 and 13 or 14, members of Respondent
Union, all in the employ of DeMoss, three as rank-and-
file employees and six as supervisors/grievance adjusters,
notified the Union by certified mail, received by the
Union in the regular course,3 that they resigned from the
Union. The Constitution and Ritual, Joint Exhibit 10,
page 78, article 16, section 1(b), states:4
Any member in good standing who has paid all
dues and financial obligations may sever his connec-
tions by written resignation mailed to the financial
secretary-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 offerred in anticipation of
charges being preferred against him, during the pen-
dancy [sic] of any such charges or during a strike or
lockout.
It is stipulated that at the time of their resignations or
purported resignations, each of the nine individuals was a
union member in good standing. There is no contention
that any was delinquent in dues or financial obligations
at the time he notified the Union of his resignation as
3 There is no contention that any of these resignations was received on
or after April 30
4 Upon joining the Union, the supervisors, as well as the rank-and-file
employees, had agreed to be governed by the Union's Constitution and
Ritual See, e.g, Jt Exhs 6 and 1, p 1
aforesaid. Nor is there any contention that any of the
resignations was in anticipation of charges or during
pendency of charges or during a strike or lockout. It
would thus appear, and I find, that all nine of the union
members here fully complied with the above resignation
requirements.
At the time of these resignations, the Union and
DeMoss were engaged in cocllective bargaining looking
toward renewal of their collective agreement (R. Exh. 1,
1978-1981 but subsequently extended) expiring on April
30, 1984. Those negotiations were unsuccessful and, since
no agreement was reached by April 30, a work interrup-
tion or strike occurred at that time by the Union, pursu-
ant to a strike vote taken on April 30. The strike is ap-
parently still continuing. It thus appears, and I find, that
all of the foregoing resignations occurred and became
fully effective prior to the inception of the above strike.
Subsequent to these resignations and the inception of
the strike, on May 16 the Union brought two separate
sets of intraunion charges against each of the nine re-
signed members. (Jt. Exhs. 1-9.) The first set of charges
was for "attempting, inaugurating or encouraging seces-
sion [from this Union] . . . or advocating or encouraging
any dual labor movement" (Union's Constitution and
Ritual, art. 17, sec. 1(f)), for "[e]ngag[ing] in any conduct
which is detrimental to the best interests of this [Union]
... of which will bring said union[s] into disrepute" (id.
sec. 1(m)), and "specifically . . . by his attempted seces-
sion . . . adversly [sic] affect[ing] the possible renewal of
a collective bargaining agreement with his employer The
DeMoss Co." (no constitutional or other specific basis
enumerated).) The second set of charges, based on the
nine resigned members' continuing to work for DeMoss
after the inception of the strike following April 30, was
for "[v]iolating the established union, collective bargain-
ing agreements and rules and regulations . . . relating to
rates of pay, rules and working conditions" (id. sec.
1(e)), for "[a]greeing to perform any sheet metal work
covered by the claimed jurisdiction of this [Union] on
... any . . . basis except that provided and specified by
this Constitution and by the established and recognized
union agreements, rules and regulations . . . governing
the employment of members" (id. sec. 1(h)), and "specifi-
cally" for "accept[ing] employment and continu[ing] to
be employed by an employer, engaged in sheet metal
work that does not have a collective bargaining agree-
ment with [the Union]" (no constitutional or other spe-
cific basis enumerated.)
After trials held before Union's trial boards, at which
none of the nine charged former members appeared and
from the outcome of which none has to the time of the
trial appealed or sought other redress, all nine were
found guilty of all charges and each was fined a total of
from $4500 or $5000 to $9000 or $9500 (Jt. Exhs. 1-9).
Also to the time of this trial, the Union has not attempt-
ed collection or other enforcement of any of these fines;
nor has the Umon at any time expelled from its member-
ship any of the nine individuals here, even though it-
unlike they, having resigned-regards them as still being
members. The Union, has however, suspended them for
SHEET METAL WORKERS LOCAL 68 (DEMOSS) 1013
nonpayment of dues, which they deny they owe since
their resignation.
B. Consolidated Cases 16-CB-2370-3, -4, and -5:
Alleged 8(b)(1)(A) Violations
Consolidated Cases 16-CB--2370-3, -4, and -5 involve
alleged violations of Section 8(b)(l)(A) on the part of the
Union in assessing the aforedescribed fines against rank-
and-file employees Shank, Belota, and Mann after they
resigned from the Union. Under Section 8(b)(1)(A) it is
an unfair labor practice for a labor organization "to re-
strain or coerce . . . employees in the exercise of the
rights guaranteed in Section 7." One of the rights guar-
anteed to employees in Section 7 is "to join . . . labor
organizations . . . [or] to refrain [therefrom]" except
under lawful union membership requirements of collec-
tive agreements in so-called non-right-to-work States.
Since Texas, here, is a so-called right-to-work State, the
maintenance of membership requirement provision of the
parties collective agreement (R. Exh. 1, p. 3, art. V, sec.
1) is of no effect, and, indeed, it so expressly stipulates
(id. at 4, sec. 3).
The Board has but very recently, overturning its prior
decisions to the contrary,5 ruled that "any . . . restric-
tion a union may impose on resignation is invalid" (em-
phasis supplied), and that a union violates Section
8(b)(1)(A) by imposing a fine for such resignation,
even-unlike at bar-in the presence of a union constitu-
tional provision expressly authorizing the fine. Machinists
Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330, 1331
(1984), emphasis supplied. While Respondent expressly
conceded, upon the record here, the applicability of this
recent ruling with regard to the three rank-and-file em-
ployees (i.e., Shank, Belota, and Mann) involved in the
8(b)(1)(A) consolidated case , it maintains that the cited
recent Board decision is contrary to law. Accepting and
agreeing with Respondent's concession that Neufeld
Porsche-Audi is directly applicable here, that decision is
plainly controlling on me and I am required to give it
affect.6
Beyond this, however, it is to be observed that even in
the absence of Neufeld Porsche-Audi, supra, Respondent's
action here in fining the three rank-and-file employees in
consequence of their resignation prior to the strike,
would be violative of Section 8(b)(1)(A) since as has
been shown, they fully complied with the requirements
of the Union's Constitution and Ritual for those resigna-
tion. See NLRB v. Textile Workers Local 1029, Granite
State Joint Board, 409 U.S. 213, 217, 218 (1972); Typo-
graphical Union (Register Publishing), 270 NLRB 1386
(1984). Clearly the Union was powerless to fine individ-
5 E g, Machinists Local 1327 (Dalmo Victor II), 263 NLRB 984 (1982),
enf denied 725 F 2d 1212 (9th Cir 1984).
6 See, e.g., Lenz Co., 153 NLRB 1399 (1965), Iowa Beef Packers, 144
NLRB 615 (1963); North Country Motors, 133 NLRB 1479 (1961), Reli-
ance Fuel Oil Corp., 129 NLRB 1166 (1961); Longshoremen ILA Local
1426 (Heide & Co.), 128 NLRB 198 (1960); Novak Logging Co, 119
NLRB 1573 (1958), Insurance Agents (Prudential Ins Co.), 119 NLRB 768
(1957). Cf Armco, Inc, 155 NLRB 551 (1965), Teamsters Local 390, 119
NLRB 852 (1957)
uals by reason of, or for actions they took subsequent to,
their valid resignations.7
For the foregoing reasons, it is concluded that by its
described disciplinary actions, including fines, against
DeMoss employees William H. Shank Jr., James L.
Belota, and Loy R. Mann, subsequent to their valid res-
ignations from the Union as found, Respondent Union
violated Section 8(b)(1)(A) of the Act, as alleged in the
consolidated complaint in Cases 16-CB-2370-3, -4, and
-5.
C. Case 16-CB-2385: Alleged 8(b)(1)(B) Violations
Case 16-CB-2385 involves alleged violation of Section
8(b)(1)(B) by Respondent Union in imposing fines, as
aforedescribed, on six supervisors/grievance adjusters of
DeMoss.
Under Section 8(b)(1)(B) it is an unlawful labor prac-
tice for a labor organization "to restrain of coerce .. .
an employer in the selection of his representatives for the
purposes of collective bargaining or the adjustment of
grievances." It is to be noted that since the six supervi-
sors in this case (16-CB-2385) are not "employees"
within the meaning of the Act (Sec. 2(3)), Respondent
Union's fines against them are not violative of Section
8(b)(1)(A), which applies only to union restraint or coer-
cion against employees. Even though not "employees"
within the Act's definition, the supervisors nevertheless
had the right to membership in the union, as expressly
permitted under Section 14(a) of the Act, and as expli-
city authorized by the Union's Constitution and Ritual
(Jt. Exh. 10, p. 78, art. 16, sec. 1(b)).
Status of the Six Supervisors as DeMoss'
Representatives for Adjustment of Grievances
Credited substantial evidence in the form of extensive
testimony of all six individuals here involved establishes,
without contradiction or rebuttal, that at the times here
material each was a supervisor of Employer DeMoss
within the Act's definition (Sec. 2[11]8) and that each,
also in the exercise of his independent judgment , adjust-
ed DeMoss employees' grievances.9 Upon the basis of
7 See, e g., Machinists Lodge 405 v. NLRB, 412 U.S. 84 (1973); NLRB
v. Textile Workers Local 1029, supra, Typographical Union, supra This is
true even where unlawfully resigned union members engage in strike-
breaking activity after their union resignation Id , Graphic Arts Union,
250 NLRB 850 ( 1980) However, a union may limit such former members
from readmission to its ranks NLRB v. Machinists Lodges 99 & 213 (Gen-
eral Electric), 489 F 2d 769 (1st Cir 1974), denying enf 194 NLRB 938
(1972); Pattern Makers (Lietzau Pattern Co.), 199 NLRB 96 (1972). It has
also been held that resignation from a union does not terminate the effec-
tiveness of a union dues-checkoff authorization or relieve the employer of
the obligation to withhold union dues or service fees pursuant thereto
NLRB v Shen-Mar Food Products, 557 F 2d 396 (4th Cir. 1977), enfg 221
NLRB 1329 (1976); Distillery Workers Local 80 (Capitol-Husnng Co.), 235
NLRB 1264 (1978)
8 E.g., each had authority , in the exercise of his independent judgment
in the Employer's interest, at least to responsibly direct employees, who
were required to and who did follow the directions and orders they re-
ceived from these six
9 The fact that they occasionally also did manual work does not dero-
gate from the foregoing So too typically do employers ' principals,
owners, and executives
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that aggregate testimony, which I credit, I find that sub-
stantial credible evidence on the record as a whole estab-
lishes that each of the six individuals in question (Dennis
Williamson, Claud Montgomery, Charles Gunn, Joe Wil-
liamson, Mike Hardison, and Glen Long) was at all times
here material a supervisor of Employer DeMoss within
the meaning of Section 2(11) of the Act and, further, at
all of these times, a representative of Employer DeMoss
for the purpose of adjustment of grievances within the
meaning of Section 8(b)(1)(B) of the Act.io
Although the thrust of the "employee" (as defined by
the Act) protections afforded by the Act does not apply
to supervisors, it appears to me to be unjustifiable to
regard Neufeld Porsche-Audi, supra, otherwise than as
signifying that all union members-whether rank-and-file
or supervisory or unemployed-may resign from a union
at any time without restriction. Moreover, it is to be
noted that Section 8(b)(1)(B) does not speak of restraint
or coercion upon any category of "employees" of an em-
ployer, but explicitly upon the employer in the selection
of his "representatives" who serve him in collective bar-
gaining (typically not his "employees" as defined by the
Act) or in grievance adjustment (also typically not his
"employees" as defined by the Act).
It seems to me that with Employer DeMoss' griev-
ance-adjusting supervisors subjected to the very substan-
tial monetary fines by Respondent Union here, it cannot
be gainsaid that those fines, restraintful and coercive as
they undeniably were against the supervisors/grievance
adjusters themselves as any large fine is upon anybody
against whom levied, necessarily also restrained and co-
erced their Employer DeMoss in its "selection of his rep-
resentatives for the purposes of . . . the adjustment of
grievances" (Act, Sec. 8[b][1][B]) by narrowing, if not
attemptedly subtantially eliminating, its field of choice of
grievance-adjustment representatives, since who would
not quail or be less willing to serve in that capacity
when confronted with huge monetary fines if he contin-
ued to do so (or, as to a new one, if he started to do so)?
It would seem that at the very least the imposition of the
huge fines here was calculated to dampen the ardor or
willingness of the fined individuals (as well as future can-
didates or nominees) to continue to serve their employer
as supervisors/grievance adjusters, and thereby necessari-
ly greatly to narrow and thus restrain and coerce their
employer in its selection and continued effective utiliza-
tion of them in that capacity, within the proscription of
Section 8(b)(1)(B). Cf., e.g., Electrical Workers IBEW
Local 73 (Chewelah Contractors), 231 NLRB 809 (1977),
and cases cited; Carpenters, New Mexico District Council
(A. S. Horne, Inc.), 177 NLRB 500 (1969), enfd. 454 F.2d
1116 (10th Cir. 1972); San Francisco-Oakland Mailers'
Union Local 18, 172 NLRB 2173 (1968); Typographical
Union Local 6 (New York News), 237 NLRB 1241 (1978);
Carpenters, Wisconsin River Valley District (Skippy Enter-
prises), 218 NLRB 1063 (1975), enfd. 532 F.2d 47, 53 (7th
Cir. 1976).
Since, under Neufeld Porsche-Audi and the provisions
of its own Constitution and Ritual, Respondent Union's
10 None of the six has functioned as a representative for the purpose of
collective bargaining, cf Sec 8(b)(1)(B)
actions in trying and finding the DeMoss supervisors/-
grievance adjusters here in question for exercising their
right to resign from the Union and thereafter to continue
to work in the same capacity (i.e., supervisors/grievance
adjusters) for their Employer, were unlawful, the effect
of those actions was clearly calculated to restrain and
coerce their Employer in its selection and retention of
them as its grievance-adjustment representatives, because
predictably that could only be at the price of continuing
or creating new union hostility toward them and in their
effective representation of their Employer's interests in
grievance adjustment, thereby restraining a d coercing
their Employer in further utilizing them in that capacity.
Cf., e.g., Carpenters (Skippy Enterprises Inc.), supra; Long-
shoremen ILWU Local 6 (Associated Food), 220 NLRB
809 (1975); Teamsters Local 986 (Tak-Tralc Inc), 145
NLRB 1511 (1964); Garment Workers Los Angeles Cloak
Joint Board (Helen Rose Co.), 127 NLRB 1543 (1960).
It is accordingly determined that through its described
actions in purportedly trying and imposing heavy fines
upon the aforementioned six grievance-adjustment super-
visors of DeMoss under the circumstances described, Re-
spondent Union has restrained and coerced Employer
DeMoss in its selection of representatives for the adjust-
ment of grievances, in violation of Section 8(b)(1)(B) of
the Act.
Alleged Violation of Section 8(b)(1)(B) Through
Fining Supervisors for Engaging in "Struck" Work
A second and distinct aspect of the 8(b)(1)(B) violation
is presented on Respondent Union's imposing heavy fines
on the grievance-adjusting supervisors here for engaging
in "struck" work after their resignation. i i
Since, as I have found, the resignations of these griev-
ance-adjusting supervisors were undoubtedly valid, both
under Board law (Neufeld Porsche-Audi, supra) and under
the Union's own Constitution and Ritual (supra), Re-
spondent Union's action in purportedly trying and impos-
ing stiff fines on them for engaging in "struck" work was
clearly unlawful, because as resigned members they were
no longer subject to the Union's policies or requirements:
Under these circumstances, the Union's purported "trial"
of them for doing what they had the right to do was no
more or less than an empty drumhead procedure lacking
jurisdictional or other validity; and its imposition of
heavy monetary fines upon them was designed to chill
and discourage their Employer in its selection and con-
tinued effective utilization of them as its grievance-ad-
justment representatives, since its continuing them in that
capacity could only be to court the displeasure if not
vindictive counteraction of the Union-such as by press-
11 There is no contention here that any of the work performed by any
of the six supervisors, albeit subsequent to their resignations from the
Union, was unit or nonsupervisory work Cf, in this connection, Florida
Power Co. v. Electrical Workers IBEW Local 641, 417 U S 790 (1974), Ty-
pographical Union Local 6 (Triangle Publications), 216 NLRB 896 (1975),
Typographical Union Local 16 (Hammond Publishers), 216 NLRB 903
(1975), enfd 539 F 2d 242 (D C Cir 1976) However, as validly resigned
union members, they were at liberty to perform unit, nonsupervisory, or
"struck" work without retribution from their former Union calculated to
impair their continued usefulness to and utilization by their Employer as
its grievance-adjustment representatives.
SHEET METAL WORKERS LOCAL 68 (DEMOSS) 1015
mg attempted collection of those fines through seizure of
their assets and garnishment of their salaries, or by refus-
ing to deal with them in grievance adjustment (or pres-
suring them not to represent their Employer's interests
loyally as its grievance adjusters), so as either to cause
them to relinquish that capacity or fail to fulfill it proper-
ly, or to cause or bring pressure upon their Employer to
replace them as its grievance-adjustment representa-
tives-either way, restraint or coercion within the mean-
ing of Section 8(b)(1)(B). Cf., e.g., American Broadcasting
Cos. v. Writers Guild, 437 U.S. 411, 430 (1978).12
I accordingly find that Respondent Union violated
Section 8(b)(1)(B) also in this aspect of the case.13
CONCLUSIONS OF LAW
A. Jurisdiction is properly asserted in each of these
proceedings.
B. By instituting intraunion charges against, bringing
and subjecting to trial, levying fines upon and demanding
payment thereof, and purportedly suspending from union
membership William H. Shank Jr., James L. Belota, and
Loy R. Mann, allegedly for nonpayment of union dues,
subsequent to their lawful and valid resignations from
the Union and by not giving effect to those resignations,
in the manner and under the circumstances described and
found in section II, supra, Respondent Union has re-
strained and coerced, and continues to restrain and
coerce, employees in the exercise of the -rights guaran-
teed in Section 7 of the National Labor Relations Act,
including the right to refrain from joining or remaining
members of a labor organization, namely said Union, in
violation of Section 8(b)(l)(A) of said Act.
C. By instituting intraunion charges against, bringing
and subjecting to trial, levying fines upon and demanding
payment thereof, and purportedly suspending from union
12 If Respondent's contention that these six supervisors/grievance ad-
justers never validly resigned from the Union and that they are still mem-
bers of it (albeit in suspension for nonpayment of dues and/or fines) is
assumed arguendo to be correct, their Employer may be considered all
the more restrained and coerced in its selection and retention of them in
that grievance-adjustment capacity
13 Respondent urges that the employees here, or some of them, have
gained pension (as well as temporary health and welfare) rights to which
they should in some way or for some reason not be entitled or forfeit in
view of their resignations (Respondent concedes that it is not a condition
precedent to resignation in its Union that such rights be relinquished.) If
this is so, it is not an issue here or properly to be resolved in the instant
proceedings
membership Dennis Williamson, Claud Montgomery,
Charles Gunn, Joe Williamson, Mike Hardison, and Glen
Long, supervisors and grievance-adjustment representa-
tives of The DeMoss Company Inc. (an Employer en-
gaged in commerce under the Act), allegedly for non-
payment of union dues, subsequent to their unlawful and
valid resignations from the Union and by not giving
effect to those resignations, in the manner and under the
circumstances described and found in section II, supra,
Respondent has restrained and coerced, and continues to
restrain and coerce, the Employer in the selection of its
representatives for the purposes of the adjustment of
grievances, in violation of Section 8(b)(1)(B) of the Na-
tional Labor Relations Act.
D. The unfair labor practices, violations of the Act,
have affected, are affecting, and, unless permanently re-
strained and enjoined and affirmatively redressed, will
continue to affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Respondent should be restrained and enjoined from
continuing to violate the Act in the respects found, or in
like or related respects; to give effect to the resignations
of its aforesaid nine members; to rescind the fines im-
posed on the Employer's employees and grievance-ad-
justment representatives and to take no action to enforce
the same (or, if paid in whole or in part, to return such
payments with interest from the date of payment); to
annul and vacate all proceedings, including trial proceed-
ings and their outcomes, leading to and eventuating in
the fines; to purge and expunge from its records all
records of and references to the fines and proceedings,
and to so notify said employees and grievance-adjust-
ment repersentatives; and to post the usual informational
notice to its members (with notice also by the Employer
in its premises, if it desires).
Further, in accordance with the Board's Decision and
Remedial Order in Neufeld Porsche-Audi, supra, that por-
tion of article 16, section 13 of Respondent's governing
Constitution and Ritual which precludes resignation from
the Union of a union member "during a strike or lock-
out" should be required to be given no effect and to be
expunged from Respondent's governing documents in-
corporated by reference therein and adopted by Re-
spondent as its own.
[Recommended Order omitted from publication.]