Sheet Metal Workers Local 16 (Salem Heating)

National Labor Relations Board - Board Decisions

Feb 13, 1985

274 N.L.R.B. 41 (N.L.R.B. 1985)

SHEET METAL WORKERS LOCAL 16 (SALEM HEATING)
Sheet Metal Workers' International Association,
Local 16 and Sheet Metal Workers' Internation-
al Association , AFL-CIO and Salem Heating
and Sheet Metal, Inc. Case 36-CB-1064
13 February 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 20 August 1984 Administrative Law Judge
Gordon J . Myatt issued the attached decision. Re-
spondent Sheet Metal Workers' International Asso-
ciation , Local 16 and Respondent Sheet Metal
Workers' International Association , AFL-CIO
filed exceptions and supporting briefs.
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, i and
conclusions2 and to adopt the recommended Order
as modified
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 16, Portland, Oregon, and Sheet
Metal Workers' International Association, AFL-
CIO, Washington, D.C., their officers, agents, and
representatives, shall take the action set forth in the
Order as modified.
1. Substitute the following for paragraph 2(b).
"(b) Post at the headquarters of the International
Union and at the business office and meeting halls
of Local 16 copies of the attached notice marked
"Appendix."9 Copies of the notice, on forms pro-
i We have adopted the judge's finding that all of the restrictions on
member resignation contained in the constitution and ritual are invalid In
doing so, however, we do not rely on the judge's statement that the Gen-
eral Counsel asserted only that the restriction relating to strikes is unlaw-
ful Rather, the complaint alleged that the Respondents violated the Act
by maintaining the following restriction in the constitution and ritual
"No [member's] resignation shall be accepted if offered in anticipation of
charges being preferred against him, during the pendency of such charges
or during a strike or lockout "
2 We disagree with that part of the judge's recommended Order that
would require Respondent International to mail copies of the notice to all
of its affiliated local unions for posting and with that part of the recom-
mended Order that would require the affiliated locals to maintain the
notice Instead, we will modify the recommended Order so that only the
Respondents will be required to post and maintain the notice
Member Dennis, for the reason stated in Machinists Local Lodge 1414
(Neufeld Porsche-Audi), 270 NLRB 1330, 1336 fn 22 (1984), would not
order Respondent Local 16 to expunge a provision appearing in the In-
ternational's constitution and ritual, but instead would order Local 16 to
notify its members in writing that it will not enforce the resignation re-
striction
41
vided by the Regional Director for Region 19,
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
Respondents to ensure that the notices are not al-
tered, defaced, or covered by any other material."
DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Administrative Law Judge. As a
result of a charge filed against Sheet Metal Workers'
International Association, Local 16 (Local 16) on August
15, 1983, the Regional Director for Region 19 issued a
complaint and notice of hearing and an amendment to
complaint on September 28 and November 7, 1983, re-
spectively. Subsequent thereto, an amended charge was
filed on January 13, 1984, against Local 16 and its parent
organization, Sheet Metal Workers' International Asso-
ciation, AFL-CIO (the International), and the Regional
Director issued a second amended complaint and notice
of hearing on January 18, 1984.
In essence, the second amended complaint alleged
Local 16 and the International maintain and enforce a
provision in their constitution and ritual unlawfully re-
stricting the right of members to resign in certain speci-
fied circumstances; i.e., if offered in anticipation of
charges being preferred against (the member), during the
pendency of any such charges, or during a strike or lock-
out. The amended complaint also alleged that three
named employee-members had court-collectible fines im-
posed on them by Local 16 for resigning their union
membership and returning to work for Salem Heating
and Sheet Metal, Inc (the Charging Party) during a
strike against Salem resulting from unsuccessful contract
negotiations
At the hearing, however, the General Counsel moved
to delete the allegations of the complaint referring to (1)
the levy of the fines, (2) the contention that the three
named employee-members submitted their resignations to
Local 16 prior to returning to work for Salem during the
strike, and (3) the contention that Local 16 refused to
consider the tendered resignations valid. I The motion to
delete was granted over the objection of the Charging
Party Thus, the only issue remaining in the instant case
is whether the provision in the constitution and ritual re-
stricting member resignation violates Section 8(b)(1)(A)
of the National Labor Relations Act (the Act).
Trial of this matter was held in Portland, Oregon, on
January 31, 1984. All parties were represented by coun-
sel and afforded an opportunity to examine and cross-ex-
amine witnesses and to present material and relevant evi-
i As grounds in support of his motion, the General Counsel represent-
ed that the investigation revealed the employees returned to work for
Salem prior to submitting their resignations to the Union, and further,
that he was unable to ascertain what portion of the fines, if any, related
to the postresignation conduct
274 NLRB No. 8
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence on the issue involved. Briefs were submitted and
have been duly considered
On the entire record in this case, including the various
stipulations of the parties and my observation of the sole
witness 'who testified, I make the following
FINDINGS OF FACT
1. JURISDICTION
The parties admit, and I find, that Salem Heating and
Sheet Metal, Inc is an Oregon corporation with an
office and place of business located in Salem, Oregon,
engaged in the business of sheet metal fabrication and in-
stallation . During the 12 months preceding the issuance
of,the complaint, Salem realized gross sales of goods and
services from its business operations in excess of
$500,000. During the same period, Salem sold and
shipped goods or provided services from its Oregon fa-
cilities valued in excess of $50,000 to customers outside
the State of Oregon, or to customers within the State of
Oregon who were themselves engaged in interstate com-
merce. Similarly, during the same period, Salem pur-
chased goods and materials valued in excess of $50,000
and caused them to be delivered to its Oregon facilities
directly from suppliers outside the State of Oregon, or
from suppliers within the State of Oregon who in turn
obtained such goods and materials directly from sources
outside the State. Based on the foregoing, I find that
Salem is, and has been at all times material herein, an
employer within the meaning of Section 2(2) engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers' International Association, Local
16 and Sheet Metal Workers' International Association,
AFL-CIO are labor organizations within the meaning,of
Section 2(5) of the Act
III. THE ALLEGED VIOLATION OF THE ACT
The patties stipulated that Local 16 was chartered by
the International in 1888 and has remained a chartered
affiliated local union of the International since that time.,
As an affiliated local union, Local 16 is governed and
bound by the provisions of the constitution and ritual of
the International 2 In addition, Local 16 has its own
local working rules governing membership conduct. (See
G.C. Exh. 7). The working rules make reference to and
are required not to be in conflict with the provisions of
the constitution and ritual
It is stipulated that the constitution and ritual is publi-
ci^zed by the affiliated locals, including Local 16, to their
membership by providing most members with a copy
thereof Milton Hill, secretary-treasurer and business
manager of Local 16, testified that in actual practice the
2 The constitution and ritual is the governing document of the Interna-
tional Union and is authorized by its General Convention which meets
periodically The current constitution and ritual was authorized by the
Thirty-Sixth General Convention, held from August 30 to September 3,
1982, and has been in effect since at least January 1, 1983 (See G C Exh
2 and the written stipulation of the parties in evidence as G C Exh 5 )
Local has two segments of members, one group in con-
struction and marine work and the other group in pro-
duction work. New member applicants for the construc-
tion and marine segment are required to personally
attend a membership meeting where they are sworn in
by the local president. The oath administered to them in-
cludes the requirement that the applicants will abide by
the provisions of the constitution and ritual and the local
rules of the Union. Applicants in the production catego-
ry execute this same oath in writing when they sign their
membership applications. Hill stated that, regardless of
which working category the applicants might be in, each
received a kit which includes, among other things, a
copy of the constitution and ritual and the local working
rules
The record establishes the following facts First, that
Local 16 and Salem have had a collective-bargaining re-
lationship since at least April 1, 1981. Second, the con-
tract negotiations between Salem and Local 16 in 1983
proved unsuccessful and the old collective-bargaining
agreement expired on May 25, 1983. Next, that about
May 19, 1983, Hill informed the members of Local 16
that Salem would be a nonsignatory contractor as of
May 25, 1983, and employee-members would be open to
charges if they worked for Salem on or after the date
The record further establishes that three employees of
Salem who were union members continued to work for
Salem after May 25, 1983. These three individuals were
William J. Connelly, John Kirsch, and Gerald Munson
The three employees submitted letters of resignation to
Local 16 on various dates after May 25 (See G.C Exhs.
3(a), 3(b), and 3(c)) Thus, they worked as union mem-
bers for a nonsignatory employer for varying periods of
time. The letters of resignation were rejected by Hill on
the basis of article 16, section 13, of the constitution and
ritual 3 In so doing, Hill referred to that portion of the
relevant section which stated, "No resignation shall be
accepted if offered in anticipation of charges being pre-
ferred against him." Hill further stated that it had been
reported that the resigning members intended to accept
employment below the contract rates and, if so, they
would be subject to charges under article 17 of the con-
stitution and ritual.'
Concluding Findings
The General Counsel contends that the maintenance of
article 16, section 13 in the constitution and ritual gov-
erning the International and Local 16 constitutes a viola-
tion of Section 8(b)(1)(A) of the Act. The General Coun-
sel argues that this provision, in part, prohibits all resig-
nation during a strike. Therefore, under the Board's
3 That provision of the constitution states as follows
Any member in good standing who has 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 Resignations shall be ef-
fective 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 pendency of any such
charges or during a strike or lockout
4 See G C Exh 4 for a copy of the letter sent to Connelly by Hill
Similar letters were sent to the other two resigning members
SHEET METAL WORKERS LOCAL 16 (SALEM HEATING)
holding in Machinists Local 1327 (Dalmo Victor), 263
NLRB 984 (1982),5 it is an unreasonable restriction on a
member's Section 7 right to resign from the Union and
violates Section 8(b)(l)(A) of the Act.
Counsel for the International and Local 16 contend
that reliance on Dalmo Victor II is misplaced in light of
the refusal of the Ninth Circuit to enforce the Board's
Order in that case. Further, that the provision in ques-
tion is a valid restriction on resignations within the
meaning of the proviso to Section 8(b)(1)(A) regarding
acquisition and retention of membership. They assert that
to contend the maintenance of the provision is a per se
violation misreads the applicable Supreme Court deci-
sions in this area of the law.6 Finally, Local 16 contends
that it is without authority to alter the provisions of the
constitution and ritual of the International and, therefore,
cannot be held to have violated the Act simply because
it is a constituent local union of the parent organization.
While counsel for Respondent Unions correctly note
that enforcement of the Board's decision in Dalmo Victor
II was denied by the Ninth Circuit in a more recent de-
cision the Board respectfully disagreed with the court's
reasoning in that case. In so doing, a Board majority
adopted a even more stringent view of any restrictions
imposed on a member's right to resign from a union. See
Machinists Local Lodge 1414 (Neufeld Porsche-Audi), 270
NLRB 1330 (1984) (Member Zimmerman dissenting in
part). In Neufeld the Board majority overruled Dalmo
Victor II and its progeny and adopted the concurring
view set forth in Dalmo Victor II to the effect that any
restriction imposed on a member's right to resign is in-
valid. The majority held that "restrictions on resignations
[not only] impair the fundamental policies found in the
express language and consistent interpretation of Section
7" but also "impair the fundamental policy repeatedly
recognized by the Supreme Court to be embedded in the
very fabric of the labor laws that distinguishes between
international union actions and external union actions."
Id. In addition, the majority in Neufeld reiterated the
concurring view expressed in Dalmo Victor II "that any
effort to equate the institutional interests of a union with
the statutory rights of employees is inappropriate." The
Board majority went on to state that "regardless of their
legitimacy, the union's interest simply cannot negate or
otherwise overcome fundamental Section 7 rights."
In view of the sweep of the Board's holding in Neu-
feld and since I am bound to follow established Board
precedent, which has not been reversed by the Board or
the Supreme Court? I am compelled to find that all of
the restrictions on member resignation contained in arti-
cle 16, section 13, are invalid. This is true even though
the General Counsel's assertion of invalidity was limited
to the resignation restriction relating to strikes. As cur-
5 Enforcement of the Board's Order in this case was recently denied
by the United States Court of Appeals for the Ninth Circuit, 725 F 2d
1212 (9th Cir 1984) (Dalmo Victor II)
5 The Union's counsel cite the following cases which they consider to
be misapplied NLRB v Allis-Chalmers Mfg Co, 388 U.S 175 (1967),
Scofield v NLRB, 394 US 423 (1969), NLRB v. Granite State Joint
Board, Textile Workers Local 1029, 409 U S 213 (1972), Machinists Booster
Lodge 405 v NLRB, 412 U S 84 (1973)
7 Fred Jones Mfg Co, 239 NLRB 54 (1978), Club Cal-Neva, 231
NLRB 22 fn 5 (1977)
43
rent Board law now applies to any restrictions on the
right to resign from a union , it must perforce apply to
the other portions of that constitutional provision relat-
ing to the anticipation of internal union charges or
during the pendency of such charges Further, it is evi-
dent under current Board law that the mere maintenance
of these resignation restrictions in the governing docu-
ments of the International and Local 16 coerces and re-
strains employee-members from exercising their Section
7 rights. Engineers & Scientists Guild (Lockheed-Califor-
nia), 268 NLRB 311 (1983).
Finally, it is to no avail that Local 16 contends it is
powerless to alter the language contained in the offend-
ing provision of the International's constitution and
ritual. The record establishes that the local union has
adopted the constitution and ritual as its governing docu-
ment and has incorporated that document by reference in
its own local working rules-which cannot conflict with
the provisions of the International 's constitution and
ritual . Moreover, Local 16 requires its members to swear
fealty to the International's constitution and ritual and
has taken affirmative steps to distribute copies of that
document to its membership. Thus, it is apparent that by
adoption and incorporation by reference the constitution
and ritual is the governing document of the local union.
As such, the unlawful resignation restriction contained in
the constitution and ritual of the International have
become unlawful resignation restrictions maintained by
the local union in violation of Section 8(b)(1)(A) of the
Act.
CONCLUSIONS OF LAW
1. Salem Heating and Sheet Metal , Inc. is an employer
engaged in commerce within the meaning of, Section
2(2), (6), and (7) of the Act.
2. Respondent Sheet Metal Workers ' International As-
sociation , Local 16, and Respondent Sheet Metal Work-
ers' International Association , AFL-CIO are labor orga-
nizations within the meaning of Section 2(5) of the Act.
3. By maintaining restrictions on members' resignations
in their constitution and ritual , the International Union
and, Local 16 have coerced and restrained members from
exercising their rights under Section 7 in violation of
Section 8(b)(1)(A) of the Act.
4. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
THE REMEDY
Having found that the Respondents have engaged in
an unfair labor practice in violation of Section 8(b)(1)(A)
of the Act, they shall be ordered to cease and desist
therefrom and take certain affirmative action necessary
to effectuate the policies of the Act. Specifically, the
International Union and Local 16 shall be ordered to
cease and desist from maintaining in their constitution
and ritual the invalid restrictions on member resignations
and expunge these restrictions from their governing doc-
ument.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondents , Sheet Metal Workers ' International
Association , Local 16, and Sheet Metal Workers' Inter-
national Association , 'AFL-CIO, Washington , D.C, their
officers , agents, and representatives, shall
1. Cease and desist from
(a) Maintaining in their constitution and ritual article
16, section 13, to the extent it provides:
No resignation shall be accepted if offered in antici-
pation of charges being preferred against him,
during the pendency of any such charges or during
a strike or lockout.
(b) In any like or related manner interfering with, re-
straining, or coercing 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 their constitution and ritual the por-
tion of article 16, section 13 found invalid and set forth
above.
(b) Post at the headquarters of the International Union
and at the business office and meeting halls of Local 16
copies of the attached notice marked "Appendix "9 In
addition, Respondent Sheet Metal Workers' International
Association, AFL-CIO shall be required to mail copies
of said notice to all of its other affiliated local unions for
posting in their business offices and meeting halls. Copies
of said notice, on forms provided by the Regional Direc-
tor for Region 19, after being signed by the Respondents'
authorized representatives shall be posted and/or mailed
by Respondent International and posted by Respondent
8 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
Local 16 ummediately upon receipt and maintained by
them and the other affiliated locals of the International
Union for 60 consecutive days in conspicious places in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by the Re-
spondents and the affiliated local unions of the Interna-
tional to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Sign and return to the Regional Director sufficient
copies of the notice for posting by Salem Heating and
Sheet Metal, Inc., provided that Employer is willing, at
all places where notices to employees are customarily
posted.
(d) Notify the Regional Director for Region 19 in
writing within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT maintain the provision in article 16, sec-
tion 13, of our constitution and ritual which provides.
No resignation shall be accepted if offered in antici-
pation of charges being preferred against him,
during pendency of any such charges or during a
strike or lockout.
WE WILL NOT in any like or related manner restrain or
coerce our members in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL expunge from our constitution and ritual the
portion of article 16, section 13, which is set forth above.
SHEET METAL WORKERS ' INTERNATIONAL
ASSOCIATION, LOCAL 16 AND SHEET
METAL WORKERS' INTERNATIONAL ASSO-
CIATION , AFL-CIO