Sheet Metal Workers Local 208 (Mueller Co.)

National Labor Relations Board - Board Decisions

Feb 21, 1986

278 N.L.R.B. 638 (N.L.R.B. 1986)

638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association,
Local 208 and Paul Mueller Company and Don
E. Watson. Cases 17-CB-2354 and 17-CB-
2528
21 February 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 18 February 1982 Administrative Law Judge
Joan Wieder issued the attached decision in Case
17-CB-2354. The Respondent (Local 208) filed ex-
ceptions and a 'supporting brief, the General Coun-
sel filed an answering brief, and the Charging
Party filed a brief in support of the judge's deci-
sion.
On a charge filed by employee Don Watson' on
13 October 1981 the General Counsel of the Na-
tional Labor Relations Board issued a complaint in
Case 17-CB-2528 on 27 November 1981 against
the Respondent. The complaint alleges that the Re-
spondent refused to accept Watson's resignation,
processed an intraunion charge against Watson, and
conducted a disciplinary proceeding against
Watson for conduct which occurred after Watson
had submitted his resignation . The complaint al-
leges that these actions violate Section 8(b)(1)(A)
of the Act. The Respondent filed an answer and an
amended answer.
On 1 November 1982 the Respondent, the Gen-
eral Counsel, and Charging Party Watson filed
with the Board a motion to transfer Case 17-CB-
2528 to the Board, to accept a stipulation of facts
in Case 17-CB-2528, and to consolidate Case 17-
CB-2528 with Case 17-CB-2354. The Charging
Party in Case 17-CB-2354 joined the consolidation
motion by letter filed with the Board on 3 January
1983. The motion states that the parties agree that
the charge, the complaint, the answer, the amended
answer, the order postponing hearing, the order
postponing hearing indefinitely, and the stipulation
of facts which are attached to the motion consti-
tute the entire record in the case and that no oral
testimony is necessary. The motion further states
that the parties agree to waive a hearing before an
administrative law judge. On 10 November 1983
the Associate Executive Secretary, by direction of
the Board, issued an order approving the stipula-
tion, the transfer of the case to the Board, and the
consolidation of the two cases . The General Coun-
sel and the Respondent filed briefs.
' Don Watson is one of the eight employees in Case 17-CB-2354 who
resigned and who was charged , tried , and fined.
The National Labor Relations Board has delegat-
ed its authority in this proceeding. to a three-
member panel.
In Case 17-CB-2354, the Board has considered
the decision and the record in light of the excep-
tionS2 and briefs and has decided to affirm the
judge's rulings, findings, and conclusions and to
adopt the recommended Order as modified. In
Case 17-CB-2528, the Board has considered the
stipulation, the briefs, and the entire record in this
proceeding.
1. JURISDICTION
In Case 17-CB-2354 the judge delineated the ju-
risdictional facts in this matter. Those facts are the
same in Case 17-CB-2528. Accordingly, we find
that the Employer is a Missouri corporation en-
gaged in the manufacture of stainless steel products
at its facility in Springfield, Missouri. We also find
that in the past year the Employer has purchased
goods and services valued in excess of $50,000
from sources outside the State of Missouri. The
Employer is engaged in commerce and is in a busi-
ness affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
We fmd that the Respondent is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Case 17-CB-2528
1. Facts
As discussed, infra, in October 1980 Don Watson
tendered his resignation from membership to Local
208. In July 1981 Watson was talking with Hayes,
a fellow employee. During the conversation,
Watson asked Hayes if he had heard that Dudley, a
third employee, had crossed the picket line the pre-
vious summer. Hayes said that he had not heard
that, but that he doubted that it was true. Dudley
heard of the conversation and filed an intraunion
charge against Watson alleging violations of the
union constitution, including slander. On 9 Decem-
2 In Case 17-CB-2354 the Respondent excepted to the judge's failure
to "find that the parties [sic] should have deferred the matter to arbitra-
tion." The complaint concerns eight employees who resigned from the
Union and crossed the picket line to return to work and one employee,
Nicholson, who remained a union member and crossed the picket line
The core of the 8(b)(1)(A) allegation concerns the legality of art. 16, sec
13, of the International's constitution (see fn 3 infra). This is a threshold
question which the Board, not an arbitrator, must decide. Auto Workers
Local 1161 (Pfaudler Co), 271 NLRB 1411, 1417 (1984). An arbitrator's
award regarding the meaning of the contract, and the inclusion of the no-
retaliation agreement, would not resolve the basic issue before the Board.
In addition, we conclude that the 8(b)(1)(A) allegation concerning
Nicholson is properly before the Board because it is "closely inter-
twined" with the other allegations of the complaint. Roadway Express,
274 NLRB 357 (1985); International Harvester Co, 271 NLRB 647 (1984).
278 NLRB No. 87
SHEET METAL WORKERS LOCAL 208 (MUELLER CO.)
ber 1981 the Union held a trial on Dudley's charge;
Watson was found not guilty. Watson filed a
charge against the Union alleging an 8(b)(1)(A)
violation because he had submitted his resignation
in October and therefore the Union had no right to
try him.
2. Contentions of the parties
The General Counsel issued a complaint against
the Respondent alleging that the charging and
trying of Watson after he had effectively resigned
from the Union violated Section 8(b)(1)(A). The
General Counsel contended (1) that the relation-
ship between a union and its members is a contrac-
tual one and that, once a member lawfully resigns
his membership, any power of the union to police
his conduct through internal union rules ceases
with that resignation, and (2) that a member cannot
be unduly restricted in his ability to resign from a
union. 3
The Respondent advanced five arguments as to
the correctness of its actions: The Respondent
maintains that the trial was an internal union matter
and should be deferred to by the Board; the issue is
moot since Watson was found not guilty of the
charges; the statute of limitations has tolled; ' Wat-
son's resignation was not valid; and the Respondent
has been subject to "double jeopardy" because of
the relitigation of issues.
B. Discussion of the 8(b)(1)(A) Violation as to
the Members' Right to Resign in Cases 17-CB-
2354 and 17-CB-2528
From 11 July 1980 to about 3 November 1980,
the employees of the Paul Mueller Company were
engaged in a strike. As part of a strike settlement,
the Employer and Local 208 signed a no-retaliation
agreement in which they agreed that they would
not retaliate against any employee.4 Shortly after
the signing of the settlement, the strike ended.
During the strike, nine employees, including Don
Watson, crossed the picket line and returned to
work. Eight of the employees submitted resigna-
8 The Respondent, in defending its actions, relied on a provision from
its International's constitution (art. 16, sec 13) which provides:
Any member in good standing may sever his connections with the
Local Union by written resignation provided he has paid all dues
and financial obligations,' he does not continue to work at any branch
of the trade, and his resignation is accepted by the local union 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 Pertinent paragraphs of the agreement read:
Both the Union and the Company agree that they will not initiate,
encourage, or condone any retaliation against an employee for par-
ticipating in or for not participating in the strike
The parties agree that the Company may take disciplinary action
against any employee who initiates, encourages, or cooperates in any
such retaliatory action.
639
tions to the Union prior to crossing the picket line;
the ninth, Bill Nicholson , did not submit his resig-
nation.
Despite the fact that eight of the nine employees
had submitted their resignations prior to crossing
the picket line and returning to work , the Union
fined all nine employees . The Charging Party on
behalf of the nine employees filed a charge against
the Respondent alleging an 8 (b)(1)(A) violation
(Case 17-CB-2354).
A union may not lawfully restrict its members'
right to resign .5 Therefore,, the Respondent's re-
strictions on its members ' right to resign , located in
the International constitution , article 16 , section 13,
are invalid . The resignations became effective on
being submitted to the Respondent in October
1980 . Thus, as of October 1980 the eight employ-
ees, including Don Watson, who submitted resigna-
tions to Local 208 became nonmembers and not
subject to union discipline.
In Case 17-CB-2354 Local 208 charged, tried,
and fined eight employees who had previously sub-
mitted valid resignations . We find that the Re-
spondent thereby violated Section 8 (b)(1)(A).
In Case 17-CB-2528 the Respondent , as previ-
ously noted, has advanced five arguments in its
brief. Viewing those arguments in light of our find-
ing that Watson had the right . to and did in fact
resign from the Respondent in October 1980, the
five arguments lack merit . Watson's rights were not
protected by the internal union process. At the
time Local 208 charged and tried Watson, he was
not a member of Local 208. The fact that the Re-
spondent found Watson to be not guilty does not
rectify the wrongfulness of the processing of the
charges. Although the Respondent declined to
accept Watson's resignation in October' 1980, it was
on 21 August 1981 that Local 208 sought for a
second time to assert authority over Watson. This
action on the part of the Respondent constitutes
the alleged unfair labor practice . Watson filed his
charge with' the Board on 13 October 1981, well
within the 6-month period set forth in Section
10(b) of the Act. As we have found , Watson's res-
ignatidn was valid because the Respondent's clause
which bars resignations during strikes is invalid.
The Respondent alleges that "double jeopardy" ap-
plies in this case. We note that it is the Respondent
who has twice brought charges against Watson, a
nonmember . Case 17-CB-2528 arose from a sepa-
rate set of circumstances, namely , the Respondent's
second charging and trying of Watson. Thus, Case
17-CB-2528 involves neither "double jeopardy"
5 Pattern Makers v. NLRB, 473 U.S, 95 (1985), Machinists Local 1414
(Neufeld Porsche-Audi), 270 NLRB 1330 (1984)
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor relitigation of the issues in Case 17-CB-2354.
Accordingly, we find that the Respondent violated
Section 8(b)(1)(A) in Case 17-CB-2528 by process-
ing charges against and by trying nonmember Don
Watson.
C. Discussion of the No-Retaliation Clause in
Case 17-CB-2354
We adopt the judge 's finding that the parties
agreed to a valid no-retaliation clause . The judge
found that the clause was not signed under duress
and that it was integrated into the collective-bar-
gaining agreement . The judge also found that by
signing the agreement , the Respondent waived any
right it may have had to discipline an employee
about strike-related activity . The Respondent's
action in charging , trying, and fining employee Bill
Nicholson contravened the no -retaliation agree-
ment and thus was a violation of Section
8(b)(1)(A).
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
2. Paul Mueller Company is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
3. The Respondent restrained and coerced em-
ployees in the exercise of rights guaranteed them
by Section 7 of the Act, and thereby engaged in,
and is engaging in, unfair labor practices pro-
scribed by Section 8(b)(1)(A) of the Act by institut-
ing charges and levying fines against employees of
the Paul Mueller Company who, after submitting
their resignations from the Respondent, crossed the
Respondent's picket line at the Paul Mueller Com-
pany premises and returned to work. The Respond-
ent violated Section 8(b)(1)(A) by charging, trying,
and fining employee Bill Nicholson in contraven-
tion of a valid no-retaliation agreement. The Re-
spondent additionally violated Section 8(b)(1)(A)
by processing a charge against and trying non-
member Don Watson for certain postresignation
conduct. These unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that the Respondent has engaged
in and is engaging in certain unfair labor practices,
we will require the Respondent to cease and desist.
In order to effectuate the purposes of the Act, we
will also require the Respondent to rescind and ex-
punge all charges from the discriminatees' records,
to rescind all fines imposed on the discriminatees in
connection with the 11 July to 3 November 1980
strike at the Paul Mueller Company. and, if any
employee has paid any portion of the fine to the
Respondent, to refund the full amount together
with interest as prescribed in Florida Steel Corp.,
231 NLRB 651 (1977), to run from the date the
fines were paid until the date the Respondent
tenders a refund. In addition, we shall order the
Respondent to expunge from its governing docu-
ments the restriction on resignation, which we
have found to be invalid.6
In so doing we are not ordering the parent Inter-
national, which is not a party to this proceeding, to
expunge the offending provision from its constitu=
tion. Rather, we are only ordering the Respondent
to expunge the provision from its governing docu-
ments including such documents of the Internation-
al that the Respondent may have incorporated by
reference and adopted as its own.
ORDER
The National Labor Relations Board orders that
the Respondent, Sheet Metal Workers International
Association, Local 208, Springfield, Missouri, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining in its governing documents arti-
cle 16, section 13, of the International constitution
to the extent it provides:
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.
(b) Charging a violation of the constitution and
rituals, thereby subjecting a member to an intraun-
ion trial which resulted in a fine, such action being
in contravention of the no-retaliation agreement be-
tween the Union and the Paul Mueller Company
negotiated on 25 October and executed on 7 No-
vember 1980.
(c) Restraining or coercing employees who have
resigned from, and are no longer members of, the
Respondent in the exercise of rights guaranteed
them by Section 7 of the Act, by refusing to accept
validly proffered resignations from membership,
and by instituting charges, and' trying and fining
employees who have submitted their resignations
from membership to the Respondent and then
6 Though the complaints in these cases do not specifically allege the
maintenance of the provision by Respondent Local 208 as being unlaw-
ful, the absence of such an allegation has no bearing on the Board's dis-
cretion to fashion appropriate remedies for the violations found Neufeld
Porsche-Audi, supra at 1336. We will therefore order Respondent Local
208 to cease and desist from maintaining the provision in its governing
documents and to expunge the provision there from Member Dennis
would not order Respondent Local 208 to take these two actions See id.
at 1336 fn 22.
SHEET METAL WORKERS LOCAL 208 (MUELLER CO.)
crossed the Respondent's picket line to return to
work- at the Paul Mueller Company.
(d) Restraining or coercing an employee who has
resigned from, and is not a member of, the Re-
spondent in the exercise of the rights guaranteed
him by Section 7 of the Act by processing an in-
traunion charge, and trying an employee for his
postresignation conduct.
(e) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the purposes of the Act.
(a) Expunge from its governing documents the
portion of the International constitution (art. 16,
sec. 13) set forth above.
(b) Expunge from its records all charges and
refund any and all fines, with interest, levied
against all employees who submitted resignations of
their membership in the Respondent during the
strike against the Paul Mueller Company which
began on 11 July 1980 and concluded on 3 Novem-
ber 1980.
(c) Forthwith notify in writing Norman Bolin,
Bill Drumm, Garry Gowin, Kenneth Hemphill,,
Thomas Nickle, Bill Nicholson, Wilbur Penning-
ton, Ron Retherford, and Don Watson that the
charges and fines imposed on them have been va-
cated, expunged, and rescinded.
(d) Post in its business office and all meeting
halls copies of the attached notice marked "Appen-
dix."' Copies of the notice, on forms provided by
the Regional Director for Region 17, after being
signed by the Respondent's authorized representa-
tive, shall be posted for 60 consecutive days in con-
spicuous places including all places where notices
to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by the Paul
Mueller Company, if willing, at all places where
notices to employees are customarily posted.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
7 If this Older 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 "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
641
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT maintain in our governing docu-
ments that portion 'of the International constitution
(art. 16, sec. 13) which reads: "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."
WE WILL NOT charge violations of our constitu-
tion and ritual and thereby subject Bill Nicholson
to an intraunion trial resulting in a recommended
fine, such action being in contravention of the no-
retaliation agreement between this Union and Paul
Mueller Company negotiated on 25 October and
executed on 7 November 1980.
WE WILL NOT restrain or coerce the below-
named 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
refusing to accept validly 'proffered resignations
from membership, instituting charges, and trying
and fining employees who have submitted their res-
ignations from membership to the Union and then
crossed the picket line to return to work at the
Paul Mueller Company.
Norman Bolin Thomas Nickle
Bill Drumm Wilbur Pennington
Garry Gowin Ron Retherford
Kenneth Hemphill Don Watson
WE WILL NOT restrain or coerce employee Don
Watson who has resigned from and is not a
member of the Union. WE WILL NOT interfere with
his exercise of the rights guaranteed in Section 7 of
the Act by processing an intraunion charge against
him and by trying him for postresignation conduct.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL expunge from our governing docu-
ments those portions of the International constitu-
tion (art. 16, sec . 13) which restrict resignations
from the Union.
WE WILL rescind all fines and expunge all record
of action heretofore taken which resulted in the
recommended fining of the above-named employ-
ees, including , without limitations , filing of charges,
publicity of trial , and trial.
WE WILL inform , in writing, each of the above-
named employees against whom action was taken
that all record of such action will be expunged.
On the entire record of the case , and from my obser-
vation of the witnesses and their demeanor , I make the
following
FINDINGS OF FACT
1. THE EMPLOYER'S BUSINESS
Respondent admits that the Employer is a Missouri
corporation engaged in the manufacture of stainless steel
products at its facility in Springfield , Missouri . It further
admits that during the past year , in the course and con-
duct of its business , the Employer has purchased goods -
and service valued in excess of $50 ,000 from sources out-
side the State of Missouri . Accordingly , it admits, and I
find that the Employer is engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
SHEET METAL WORKERS INTERNA-
TIONAL ASSOCIATION, LOCAL 208
Deborah Ford and Jack McCarthy, Esgx, for the General
Counsel.
Benjamin J. Francka, Esq., of Springfield, Missouri, for
the Respondent.
Lincoln J. Knauer Jr., Esq., of Springfield , Missouri, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER , Administrative Law Judge . This case
was tried before me at Springfield , Missouri, on August
24 through 27, 1981 ,1 pursuant to a complaint issued by
the Regional Director for Region 17 on January 15,
1981, amended on June 22 , 1981, and at the hearing, and
which is based on a charge filed by Paul Mueller Com-
pany (Paul Mueller or the Company) on December 9,
1980. The complaint alleges that Sheet Metal Workers
International Association, Local 208 (Respondent or
Union), has engaged in certain violations of Section
8(b)(1)(A) of the National Labor Relations Act.
Issues
Whether or not Respondent Union violated Section
8(b)(1)(A) of the Act by : (1) Bringing union charges,
conducting union trials , and imposing fines against eight
employees who tendered resignations to the Union
during an economic strike , and then crossed the picket
line to work during the strike; and/or (2) by bringing
union charges , conducting union trials , and imposing
fines against nine employees after negotiating, and sign-
ing a no-retaliation agreement.
All parties were given full opportunity to participate,
to introduce relevant evidence , to examine and cross-ex-
amine witnesses , to argue orally , and to file briefs. Briefs,
which have been carefully considered , were filed on
behalf of all parties on October 1, 1981.2
I All dates refer to 1980 unless otherwise indicated
2 The parties' motions to correct the transcnpt are granted
H. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. PRELIMINARY MATTERS
The Union raised two procedural issues . The first in-
volves a timely request for a continuance of the trial be-
cause Respondent's chief administrative officer and busi-
ness agent , Holgerson , was unable to attend for he was
"required to attend" a conference of union business man-
agers held in Hawaii . The initial motion for a continu-
ance was filed on July 1 , and the Regional Director
denied the motion on July 10 . The motion was renewed
at the commencement of the trial.
In support of the motion , counsel for Respondent ini-
tially stated it was a 2- or 3 -day conference held over the
preceding weekend and there was no way for Holgerson
to be back on August 25, 1981 . Counsel for the Union
then stated he did not know the exact dates of the con-
ference; and subsequently stated that, based on informa-
tion supplied by an unnamed source , the conference ran
from August 23 through 27, 1981 . On information pro-
vided by an unnamed source or sources , counsel also
represented that Holgerson's attendance was mandated
by the Union 's constitution and by the International.
The section of the constitution referred to as mandat-
ing attendance was found to refer to named positions and
meetings , none being business manager, and none being a
meeting as described by the mandate . There were no
documents indicating that Holgerson 's attendance at the
Hawaii meeting was other than voluntary . Further, it
was admitted that there were seven other members of
the Union 's negotiating team who could testify and Re-
spondent failed to demonstrate the necessity to have Hol-
gerson present to permit the adequate presentation of its
defense. However, counsel was given the opportunity
during the course of the trial of showing why the failure
to grant the continuance resulted in such prejudice to
Respondent 's preparation and presentation of its case as
to warrant reversing the decision to deny the motion.
Another basis for the requested continuance advanced
initially at the hearing was the claim that the General
Counsel's assertion at the commencement of the hearing
SHEET METAL WORKERS LOCAL 208 (MUELLER CO.) 643
that the complaint encompassed the issue of the validity
of the resignations of eight employees was a total sur-
prise necessitating the attendance of Holgerson. As found
at the trial, this allegation is not well-founded, based on
the facts stated in the complaint which allege that the
violation of Section 8(b)(1)(A) arose from firing individ-
uals who crossed the picket line, which usually includes
the issue of timely and proper resignations where, as
here, the Union had-received such resignations. Howev-
er, even if it is assumed that the complaint, which was
not clearly drawn, did not include this allegation, the
modification was made at the commencement of trial
which was early enough in the hearing to obviate any
possible problem of surprise. Arkansas-Best Freight
System, 257 NLRB 420 (1981), citing South Shore Hospi-
tal, 229 NLRB 363 (1977). During the course of the
hearing, there was no suggestion that the defense was in
any sense handicapped by a lack of preparation and,
indeed , no specific details to the contrary were set forth
in Respondent's brief. Accordingly, after a review of Re-
spondent's request for a continuance, it is concluded that
good cause has not been shown and reconsideration is
denied.
Respondent, in its brief, argues that the Company
failed to bargain in good faith for it insisted that the
Union bargain about the no-retaliation clause, a nonman-
datory subject of bargaining, as a condition of settlement.
As noted at trial, the Union filed a charge on April 13,
1981, in Case 17-CA-10294, alleging a violation of Sec-
tion 8(a)(5), as follows:
On or about October 24, 1980, and thereafter the
Employer joined the course of negotiations for a
new collective-bargaining agreement governing em-
ployees represented by the Charging Party, to the
point of impasse as a condition of settlement of the
strike, that there be included in the strike settlement
agreement dealing with non-mandatory subjects of
bargaining, to wit internal union affairs.
On April 29, 1981, pursuant to an order signed by the
Regional. Director for Region 17, Thomas C. Hendrix,
the Union was informed that after investigation a com-
plaint Would not be issued. After getting an extension of
time to file an appeal to the Regional Director's decision,
the Union. filed an appeal which was denied on June 23,
1981, by, Mary M. Shanklin, Acting Director of the
Office of Appeals of the National Labor Relations
Board.
At the commencement of the trial, Respondent was in-
formed that it was not entitled to collaterally attach the
decisions of the Regional Director and Acting Director
of the Office of Appeals by litigating herein the allega-
tions contained in the dismissed charges. Respondent has
not alleged that there were any special circumstances
which warrant consideration of these charges herein. Ac-
cordingly, these union charges will not be considered.
IV. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background
Most of the facts adduced in the proceedings are un-
controverted. The Company and the Union3 had a col-
lective-bargaining agreement which expired about July
11, 1980. Also on July 11, Respondent's members com-
menced a strike which lasted until about November 3.
Negotiating, which began about June 3, continued
through to the end of October with the Company and
the Union conducting about 22 negotiating sessions.
After most of the negotiating sessions were conducted,
the Company, on October 14, submitted a "best and
final" offer which was rejected at a -ratification -vote held
by the Union on October 18. The Company then com-
menced a campaign to induce its employees to return to
work. One such solicitation was a letter dated October
20, 1980, which was mailed to all employees. This letter
included , as an attachment, a legal opinion from an attor-
ney indicating that employees who properly resigned
from Respondent would not be subject to fines by the
Union. In conclusion, this letter stated that if the address-
ee had any questions concerning his rights to return to
work, he should call Mike Young, the Company's man-
ager of employee relations . On October 22, the Company
mailed a second letter to all employees referring to the
legal opinion forwarded with the October 20 letter to the
effect that the employees had a right to return to, work
under terms of the union constitution and ritual. The Oc-
tober 22 letter further provided:
A union cannot unreasonably restrict the rights of
members to resign from the union and return to
work. The law is clear that employees have a right
to work as much as they have a right to strike. So
long as employees resign in writing before returning
to work, the National Labor Relations Board and
federal law will protect them from union charges
and fines.
The Company also ran newspaper advertisements seek-
ing replacement employees.
In response to this campaign or for other reasons, as
pertinent- herein, nine employees4 returned to work, of
which eights tendered resignations from the Union to
Respondent prior to crossing the picket line. All mem-
bers who crossed the picket line during the strike had
charges brought against them by the Union and were
fined $2000 per violation. Also in partial response to the
Company's campaign , the Union mailed to its members
on October 23 a letter discussing initially insurance cov-
erage and also including the following:
8 Prior to 1976, the employees of the Company were represented by
Local 146, a predecessor to Local 208
4 They were Norman Bohn, Bill Drumm, Garry Gowin, Kenneth
Hemphill, Thomas Nickle, Bill Nicholson, Wilbur Pennington , Ron Reth-
erford, and Don Watson.
5 Bill Nicholson did not tender a resignation to the Union and he did
not appear to testify No reason was given for his absence or his failure
to resign
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In reference to the letter and contents from the
Paul Mueller Company dated 10/20/80 in which it
expressed the disappointment of the offer being
turned down.
This disappointment can in no way compare with
the disappointment expressed by the members of the
company's last proposal. Because of its inconclusive
language, mis-representation of the fringe benefits
and the manner in which it was trust [sic] on the
membership it was to [sic] disappointing to accept.
As to any Federal law protecting individuals re-
turning to work during a strike. This same Federal
law will protect individuals who choose not to
return to work during a strike . In the additional
letter which it refers to individuals rights protected
by law, again, let me say your right and the rights
of your Union are protected by the same law. Also
in this letter is the mention of a member resigning
during this strike period and whether the Union
fires a member for doing so. As for firing a
member, the Union is not in the position of hiring
and firing. What, if any, action taken toward a
member is handled within the internal operation of
the Union.
As for resigning. All members are aware that
under Article Sixteen, Section Thirteen of our cur-
rent Constitution this Local cannot accept a resigna-
tion during a strike or lockout, and the rights of this
Local and its members are protected by Law.
The strength of your Union lies in the unity of its
members.
All eight employees who tendered their resignations did
so prior to October 23, with the exception of Bill
Drumm, who resigned on October 23. Since the Union's
missive was not sent until October 23, there is no basis
for finding that these eight individuals knew of its con-
tents prior to tendering their resignations.
Furthermore, there is no basis to find that the Union's
members had knowledge of the terms of the current con-
stitution,6 which was issued in mid-1978 and sent to Re-
spondent for distribution in 1979, according to James R.
Hulse, who is currently the president of Respondent as
well as an employee of the Company.
According to Hulse, Respondent never mailed out
new constitutions; rather, notices are posted at various
points in the plant and announcements of the fact were
made at one or two union meetings to inform the mem-
bers that they may get a copy. No steps are taken to
ensure that all members have copies. Respondent asserts
that all the members involved herein received copies of
the constitution and ritual at the time they joined the
Union. All the employees who resigned, with the excep-
tion of Pennington, signed a statement that they received
Art 16, sec. 13 of the current constitution provides-
Sec 13 Any member in good standing may sever his connections
with the Local Union by written resignation provided he has paid all
dues and financial obligations, he does not continue to work at any
branch of the trade, and his resignation is accepted if offered in an-
ticipation of charges being proffered against him , during the penden-
cy of any such charges or during a strike or lockout.
a copy of the constitution and ritual at the time they ap-
plied for membership.
Pennington, who has been a member of the Union
since 1971, testified that he had never seen a copy of the
constitution and ritual prior to resigning. Further, there
was no showing that the constitution and ritual effective
prior to 1979 contained a similar restriction against resig-
nations during strikes. Also, many of the other employ-
ees involved herein were not shown to have received a
copy of the constitution that contained the proscription
against resignation during strikes.
Bolin joined the Union on August 7, 1973. He stated
he did not receive a copy of the constitution at that time.
He testified that Respondent said it would mail him a
copy but they did not. Watson joined the Union on June
7, 1973, and did receive a copy of the constitution and
ritual . He tried to read it but found the "legalistic terms"
difficult to understand and therefore only read portions
of the constitution. He does not recall reading anything
about resigning. Watson did call the Union because he
was experiencing financial difficulties and, since he
needed his job, inquired of Hulse why the October 14
proposal was rejected and expressed concern over the
Company's decision to hire replacements. Watson also
informed the Union that if settlement was not effected
within 5 days, he would have to return to work. Hulse
assertedly replied, "I can't say I would blame you if you
did." Hulse did not recall having a conversation with
Watson. Based on demeanor, inherent probabilities, and
demonstrated ability to recall events, Watson's testimony
is credited.
Bill Drumm joined the Union on February 4, 1978,
and similarly signed a statement that he received a copy
of the constitution and ritual. He testified that he did not
recall getting a copy but assumed that he did see one.
Thomas Nickle became a member of the Union on June
23, 1976, and did sign that portion' of the application
form which stated that he did receive a copy of the con-
stitution and ritual. He did not recall getting a copy of
the constitution but admitted he may have.
Retherford, Gowin, and Hemphill did not testify.
Hemphill joined the Union on November 13, 1979, and
indicated on the application that he received a copy of
the constitution and ritual; however, there is no indica-
tion that he actually received a copy of the current con-
stitution. Retherford was inducted as a member of the
Union on June 10, 1980, and similarly signed that portion
of the application form indicating that he personally re-
ceived a copy of the constitution and ritual. Finally,
Gowin became a member of the Union on October 15,
1979, and he also signed a statement that he received a
copy of the constitution and ritual. There was no show-
ing that, by virtue of completing the membership form
that applicants concurrently or otherwise received, he
got a copy of the constitution and ritual. Doris McCarty,
who is employed by Respondent, testified that she pre-
sents new members with copies but she did not testify
that she handled the applications of the individuals who
resigned during the strike or had otherwise gained pro-
bative information that they did receive copies of the
constitution and ritual.
SHEET METAL WORKERS LOCAL 208 (MUELLER CO.) 645
Hulse credibly testified that he knew of no action
taken by or on behalf of Respondent to advise the indi-
viduals who tendered their resignations of the local's po-
sition that they could not resign. Also, there is no provi-
sion for orientation or otherwise acquainting the mem-
bership with the terms of the constitution and ritual
other than the asserted disbursement of the copies at the
time applications are submitted to Respondent,'
One of the applications -for membership forms also
provides:
OBLIGATION OF MEMBERSHIP
I hereby certify that I willingly subscribe to all of
the provisions and requirements of the Constitution
and Ritual of the Sheet Metal Workers' Internation-
al Association and in consideration of the accept-
ance of my application and being obligated as a
member thereof, I hereby agree to remain loyal and
true to the principles and policies and to be gov-
erned by the Constitution and Ritual of the Sheet
Metal Workers' International Association in all mat-
ters now or hereafter included therein. I further
agree to be governed by such Local rules and regu-
lations as may be now effective, or which may be
later adopted and made operative by affiliated local
unions, which do not conflict with the Constitution
and Ritual of the Sheet Metal Workers' Internation-
al Association.
After the union membership rejected the Company's
proposal about October 18, the Union requested a meet-
ing with the Company's negotiating committee for Octo-
ber 24.8 The meeting of October 24 turned into what all
parties agreed was a marathon session which lasted until
October 26, including breaks.
On October 25, the Company presented to the Union's
negotiating team a no-retaliation clause along with sever-
al other side agreements . The no-retaliation side agree-
ment which the parties executed on November 7 pro-
vides:9
Both the Union and the Company agree that they
will not initiate, encourage , or condone any retalia-
tion against an employee for participating in or for
not participating in the strike.
The parties agree that the Company may take disci-
plinary action against any employee who initiates,
' While no one addressed this issue , it appears that the collective-bar-
gaining agreement in effect at the time the alleged discruninatees joined
the Union had union-security clauses for, according to Hulse's uncontro-
verted testimony, after employees serve a probationary period of 480
hours (30 days), they are sent a notice from Respondent to come to the
union hall to execute the application forms
8 The union negotiating committee included Roy Hudson , Jim Holger-
son, Ron Smith, Larry Haber, Larry Hoffman, Terry Gusten, and Tom
Williams Also two representatives of the International Union who par-
ticipated in the negotiations were present One of the International repre-
sentatives was Alan Board. The Company's negotiating team included
Mike Young , Hugh Roberts, Dan Manna, and Dale Horton.
9 The original proposal contained a reference to an incident where a
job applicant was assaulted, and the Company wanted agreement that the
perpetrator, whoever it was, would be discharged. The Union took um-
brage at the inference that one of their members was responsible. The
Company therefore agreed to delete that clause
encourages , or cooperates in any such retaliatory
action. ,
B. Respondent 's Position
Respondent argues that : The no-retaliation agreement
was signed under duress because the Company assertedly
kept insisting that the Union bargain about this nonman-
datory subject; the agreement was signed with the under-
standing that it was not applicable to internal union af-
fairs ; the issue is mooted by the decision of the general
president of the Sheet Metal Workers International Asso-
ciation reversing and setting aside the decisions rendered
and the fines imposed by the union tribunal; that the
issue should be resolved under the grievance and arbitra-
tion provisions of the collective -bargaining agreement,
and the Board should initially defer to these procedures.
Analysis and Conclusions
Initially, it must be determined if Respondent's de-
fenses are allowable under the Patrol Evidence Rule.
The General Counsel and the Company assert that the
final agreement subscribed to by the parties is clear and
unambiguous. As the -Board held in Inter-Lakes Engineer-
ing Co., 217 NLRB 148, 149 (1975):
It is well settled that the Parol Evidence Rule is a
rule of substantive law which requires that when
parties have made a contract "and have expressed it
in a writing to which they have [all] assented as the
complete and accurate integration of that contract,
evidence, whether parol or otherwise, of antecedent
understandings and negotiations will not be admit-
ted for the purpose of varying or contradicting the
writing."3 Concededly, the settlement stipulation
constitutes a complete and accurate integration of
the terms of the settlement stipulation.4 Thus, evi-
dence outside the agreement cannot be introduced
to vary its terms. However, it is well established
that evidence may be introduced for the purpose of
ascertaining the correct interpretation of an agree-
ment. s The evidence here was taken in order to as-
certain the meaning of the settlement stipulation,
and not to vary its terms. Under these circum-
stances, it was properly received for that purpose.
3 Corbin, Contracts § 573 (1960); see also 9 Wigmore, Evidence
§ 2400, et seq. (3d ed. 1940)
4 An agreement is integrated where the parties thereto adopt a
writing or writings as the final and complete expression of the
agreement An integration is the writing or writings so adopted.
Restatement of the Law, Contracts § 228.
5 2 Corbin, Contracts § 572(b) (1971 Pocket Part ), § 579
(1960). See also 9 Wigmore, Evidence § 2740(3) (3d ed . 1940), Re-
statement of the Law, Contracts § 242 Evidence, of course may be
introduced for a number of other purposes not relevant here.
The no-retaliation agreement was unquestionably com-
pletely and accurately integrated into the collective-bar-
gaining agreement . The agreement clearly provided that
neither the Company nor the Union may retaliate against
employees for their participation or lack thereof in the
strike. There is agreement by,all parties that the agree-
ment is complete and accurate on its face and therefore it
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must be "presumed that all prior oral understandings on
the same subject are merged in the final written agree-
ment of the parties." Peterson & Lytle, 60 NLRB 1070 fn.
1 (1945). Evidence proffered" to vary the clear terms of
the agreement is inadmissible. Apache Powder Co., 223
NLRB 191, 194 (1976). An examination of the agreement
demonstrates that there are no latent ambiguities or any
other basis to justify extrinsic evidence to resolve such
an ambiguity. Gulf Refining & Marketing, 283 NLRB
129, 133 (1978).
Further, even if the evidence is admissible, it does not
warrant varying the 'clear meaning of the agreement.
The credited testimony of Young and Manna10 is that on
October 25, after the Union objected to the no-retaliation
clause because it was an internal union affair, the Com-
pany agreed to delete that section that inferred the cul-
pability of a union member for the beating of a strike re-
placement interviewee, and the Company clearly stated
that the provision specifically applied to those union
members who crossed the picket line during the strike.
The Union agreed to the provision after specifically
being informed of the scope of its terms. Therefore the
scope and -meaning of the agreement was clearly estab-
lished prior to the Union's agreeing to the terms.
There was no showing by credible evidence that such
agreement was reached through duress. Although Re-
spondent tried to argue that the Company refused to ne-
gotiate on October 25, with the exception of the no-retal-
iation agreement,' I and such refusal to bargain, it is
claimed, caused agreement through duress. The evidence
does not support a finding of duress. See Wigmore, on
Evidence, § 2423(2)(b), which provides:
(b) Compulsion, or duress, so far as it means a co-
ercion to choose between the signing of a document
and the suffering of some harm, whether corporal
or otherwise, signifies that the act has been consu-
mated because of the motive of fear of that compul-
sion, like fraud, merely makes the act voidable. In
fact, then, compulsion is always of this nature, and
there is no clear distinction of principle between
"equitable" and "legal" duress so-called. The only
conceivable case in which duress could go to deny
the very existence of the act is that of physical sei-
zure of the person's hand, and, a forcible movement
of his pen, by another person, for there the first per-
son's volition (§ 2413 supra) is lacking.6
Compare Ames, Speciality Contracts and Equita-
ble Defences, 9 Harv. L. Rev. 49 (1895).
6 Fairbanks v Snow, 145 Mass 153, 154, 13 N E 596, 598 (1887)
(Holmes, J "No doubt, if the defendant's hand had been forcibly
taken and compelled to hold the pen and write her name, and the
note had been carried off and delivered, the signature and delivery
would not have been her act . . . there sometimes still is shown an
inclination to put all cases of duress upon this ground, but . . it is
well settled that where, as usual, the so-called duress consists only
of threats, the contract is only voidable . . the ground upon
which a contract is voidable for duress is the same as in the case of
fraud, and is that, whether it springs from a fear or a belief, the
party has been subjected to an improper motive for action, but if
duress and fraud are so far alike, there seems to be no sufficient
reason why the limits of their operation should be different")
Further, the record will not support a finding that the
Company refused to bargain during the last negotiating
session . In addition to the no-retaliation clause, other
agreements reached during this negotiating session in-
clude the establishment of training or test programs as a
prerequisite for successful job bidding to certain classifi-
cations; a cost-of-living offer which was refused by the
Union; a grinder classification was grandfathered into a
different classification; at the Union's urging, certain ver-
biage was modified during the negotiating session; the
pay rate of certain shear and brake operators was in-
creased at the Union's urging; time off for special union
meetings for nominating officers and recall seniority and
vacation eligibility were also agreed to. Respondent's
own witnesses admitted that these modifications were
made during the marathon negotiating session of October
24-26. Accordingly, it is concluded that the record con-
tains no reasonable basis for finding duress.
Respondent's argument that the issue of whether they
committed a violation of the Act by charging and find-
ing the individuals who crossed the picket line is mooted
by the setting aside of the convictions and fines is also
without merit. The International president's action is not
indicative of an abandonment by the Union of unlawful
conduct. Even if such abandonment were found, the In-
ternational's decision in these circumstances does not
moot the coercive nature of the Union's actions or obvi-
ate the need for an appropriate remedy. See Georgia Ho-
siery Mills, 207 NLRB 781 (1973); Hollander Home Fash-
ion Corp., 255 NLRB 1098 fn. 3 (1980); and Sachs Elec-
tric Co., 248 NLRB 669, 677 (1980).
By executing the no-retaliation agreement, Respondent
is found to have clearly and unequivocally waived any
right it may have to discipline, or even question, any em-
ployee about strike-related activity including not partici-
pating in a strike. As the General Counsel points out, the
wording of the no-retaliation agreement herein is sub-
stantially similar to that used in the case of Service Em-
ployees Local 250 (Dameron Hospital), 248 NLRB 1390
(1980). The basis for this finding was unexplained by the
Board in Operating Engineers Local 39, 240 NLRB 1122,
1123 (1979), wherein it held:
10 Young is the Company's manager of employee relations and Manna
is a vice president of engineering Their testimony is credited based on
demeanor, their candor, clarity of recollection, Manna's substantiation of
Young's testimony when' the witnesses were sequestered, and inherent
probabilities such as a prior request for employees to be permitted to
cross the picket line in August 1980 and the provisions contained in the
Company's letters of October 20 and 22 that they would make efforts to
protect employees who did cross the picket line.
i i The agreement is deemed to be the result of negotiations since the
parties discussed its terms fully and the Company unquestionably agreed
to modification of its original proposal
Section 8(b)(1)(A) of the Act makes it an unfair
labor practice for a union to "restrain or coerce
... employees in the exercise of the rights guaran-
teed in Section 7." The proviso to Section
8(b)(1)(A) provides that that section "shall not
impair the right of a labor organization to prescribe
its own rules with respect to the acquisition or re-
tention of membership therein." In Scofield et al., v.
N.L.R.B.,2 the Supreme Court considered the scope
SHEET METAL WORKERS LOCAL 208 (MUELLER CO.) 647
of the proviso to Section 8(b)(1)(A) and the extent
to which the proviso affords immunity to a union in
the enforcement of its rules. As an initial matter the
Court, citing, inter alia, its opinion in N.L.R.B. v.
Allis-Chalmers Manufacturing Co., et al.,3 referred
to the distinction between internal and external en-
forcement of union rules-the former type of en-
forcement being within the proviso and the latter
being beyond the proviso. The Court further stated
that:
§ 8(b)(1) leaves a union free to enforce a properly
adopted rule which reflects a legitimate union in-
terest, impairs no policy Congress has imbedded
in the labor laws, and is reasonably enforced
against union members who are free to leave the
union and escape the rule.4
In applying this test to the facts in Scofield, the
Court focused its inquiry on the legitimacy of the
union interest sought to be encouraged by the rule
and the extent to which the rule contravened any
policy of the Act. In concluding that the union's
rules, and its enforcement against its members, was
not violative of Section 8(b)(1)(A), the Supreme
Court emphasized that the union's rule "left the col-
lective bargaining process unimpaired" and
"breached no collective contract."5
Thus, the principle that a union may impose in-
ternal discipline on its members without running
afoul of Section 8(b)(l)(A) is not without exception.
In applying this section of the Act, the Board and
the courts, both prior to and after Scofield, have
recognized that the proviso of Section 8(b)(1)(A) af-
fords no immunity to a union when it imposes disci-
plinary action, even though enforced internally, that
"invades or frustrates an overriding policy of the
labor laws." In this regard, the internal enforcement
of a union rule has been found to violate Section
8(b)(1)(A) where discipline is imposed against union
members for filing or encouraging , others to file
charges with the Board,6 or for refusing to cross an
unlawful picket line,7 or for the purpose or coerc-
ing members to participate in conduct violative of
the Act." In addition, the use of discipline or threat
of discipline to compel union members into acting
in contravention of a collectively bargained-for
agreement has been recognized as falling beyond
the scope of permissible internal union discipline
under the proviso to Section 8(b)(1)(A).9
2 394 U.S 423 (1969)
3 388 U.S 175, 195 (1967)
4 394 U S at 430.
5 Id. at 436.
B NL.R.B. v. Industrial Union of Marine & Shipbuilding Workers
of Amenca, AFL-CIO et at [United States Lines Co ], 391 U S 418
(1968); Local 138, International Union of Operating Engineers
(Charles S. Skura), 148 NLRB 679 (1964), Philadelphia Moving Pic-
ture Machine Operators' Union, Local No. 307, IA TS.E. (Veho Ia-
cobucci), 159 NLRB 1614 (1966)
° Retail Clerks Union, Local 1179, Retail Clerks International As-
sociation, AFL-CIO (Alpha-Beta-Acme Markets), 211 NLRB 84
(1974), enfd 526 F 2d 142 (9th Cir 1975)
8 International Alliance of Threatncal Stage Employees (RKO
General, Inc WOR-TV Division), 223 NLRB 959 (1976), Communi-
cations Workers of America, Local 122 (New York Telephone Compa-
ny), 226 NLRB 97 (1976)
9 See Truck Drivers, Chauffeurs and Helpers Local Union No.
100, an affiliate of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Moraine Materi-
als Company), 214 NLRB 1094 (1974), and Communications Work-
ers of Amenca, AFL-CIO, Local 1170 (Rochester Telephone Corpora-
tion), 194 NLRB 872 (1972), where the Board found violations of
Sec 8(b)(3) and (1)(A) for the unilateral promulgation of a rule by
the union in contravention of the collective-bargaining agreement,
and for the imposition of discipline pursuant to the union rule See
also Local 12419, International Union of District 50, United Mine
Workers of America (National Grinding Wheel Company, Inc.), 176
NLRB 628 (1969), and Glaziers Local Union No. 1162, affiliated
with the Brotherhood of Painters Decorators, Paperhangers Glaziers
and Glassworkers of America, AFL-CIO (Turco Glass, Inc.), 177
NLRB 393 (1969), in which although no violations of Sec 8(b)(3)
were alleged, the Board found violations of Sec 8(b)(1)(A) in the
disciplining of members in contravention of no-strike clauses in
collective-bargaining agreements
Furthermore, even assuming arguendo that the no-re-
taliation agreement is not a clear and unequivocal waiver
of 'the Union's right to discipline employees who crossed
the picket line, Respondent's actions in disciplining mem-
bers for crossing the picket line under the facts presented
herein is a violation of Section 8(b)(1)(A) of the Act.
There is no question that eight members tendered their
resignations during the strike contrary to the Union's
constitution and ritual which was distributed in 1979.
The record will not support a finding that the prior con-
stitution and ritual had a similar rule against resigning
during a strike. However, even if it is assumed arguendo
such an impediment to resignation existed in the prior
constitution and ritual, as indicated by the Board in Auto-
mobile Workers Local 1384 (Ex-Cell-O Corp.), 219 NLRB
729, 748 (1975), there must be a showing that the em-
ployees knew or consented to the constitutional provi-
sion hereunder consideration. The employees signing a
statement during the application process that they will
abide by the constitution and ritual does not show
knowledge or consent for there must be a "clear and un-
mistakable" waiver of the member's statutory right to
resign from the Union. See Timken Roller Bearing Co. v.
NLRB, 325 F.2d 751 (1978), and Teamsters Local 439
(Loomis Courier), 237 NLRB 220, 223 (1978).
The employees all testified without refutation that they
had no knowledge of the restriction on their right to
resign prior to tendering their resignations. Respondent
admitted that it never held orientation or other sessions
where it discussed the limitation on resignations. The
mere provision of a copy of the constitution, which
Watson credibly and undeniably testified he tried to read
and could not understand because of the legalistic verbi-
age, is insufficient to find that the employees reasonably
should have known there was a constitutional limitation
on their right to resign, or that they had consented to a
restriction on such right.
Again assuming arguendo that the employees knew of
the constitutional bar, the issue remains whether the rule
falls within the proviso to Section 8(b)(1)(A) of the Act
as being a permissible, legitimate exercise of a labor or-
ganization's right to "prescribe its own rules with respect
to the acquisition or retention of membership therein," or
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are other supervening policies of the Act violated. Auto-
mobile Workers Local 1384 , supra at 1050 , citing Scofield
v. NLRB , 394 U.S. 423, 431 (1969).
As the Board held in Sheet Metal Workers Local 170
(Able Sheet Metal), 225 NLRB 1178 ( 1976):
Moreover , article 16, section 13 [of the constitu-
tion and ritual], imposes the requirement that a res-
ignation , to be effective, must be accepted by the
local union and then stated that resignations ten-
dered , inter alia , during a strike will not be accept-
ed. Consequently , by its terms , the provision fore-
closes, absolutely , the right of a member to freely
terminate his membership where, as here , a strike is
in progress. Such a rule may not be used to bar res-
ignation since it too narrowly restricts the right of a
member to be free to leave the union. See Local
1384, United Automobile, Aerospace, Agricultural Im-
plement Workers, UAW (Ex-Cell-O Corporation), 219
NLRB 729, fn . 4 (1975). . . . Therefore , as this re-
striction, alone, renders the provision , in effect, a
denial of the right to resign , it is tantamount to no
restriction at all on the right of voluntary resigna-
tion and may not be involved to bar a valid .. .
resignation . International Union, United Automobile,
Aerospace and Agricultural Implement Workers,
UA W, and its Local No. 647 (General Electric Com-
pany), 197 NLRB 608 , 609 (1972); International
Union, United Automobile, Aerospace, Agricultural
Implement Workers of America, Local 469 (Master
Lock Company), 221 NLRB 748 (1975).
There is no contention that, but for the provision in the
constitution , the tendered resignations would not be con-
sidered valid , and it is so found . Accordingly , the restric-
tion is found to be an unduly restrictive restraint upon
resignation and the resignations tendered the Union by
the above -named employees are found to have been ef-
fective prior to their returning to work.
Accordingly , it is found that Respondent violated Sec-
tion 8(b)(1)(A) of the Act by initiating and processing
charges in contravention of the no-retaliation agreement
and/or by disciplining employees who lawfully resigned
from the Union for the exercise of the protected right to
refrain from concerted activity.
CONCLUSIONS OF LAW
1. Paul Mueller Company is an employer within the
meaning of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Sheet Metal Workers International Association,
Local 208 is a labor organization within the meaning of
Section 2(5) of the Act.
3. By conducting trials and imposing fines on Norman
Bolin, Bill Drumm , Garry Gowin , Kenneth Hemphill,
Thomas Nickle , Bill Nicholson , Wilbur Pennington, Ron
Retherford , and Don Watson by charging violation of
Respondent's constitution and ritual in contravention of
the final and binding no-retaliation clause negotiated be-
tween the parties and executed on November 7, 1980,
after ratification by Respondent 's members and/or for
postresignation activities during the strike at the Paul
Mueller Company , Respondent restrained and coerced
these employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(b)(l)(A) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent had engaged in, and is
engaging in, certain unfair labor practices in violation of
Section 8(b)(1)(A) of the Act, it is recommended that it
be ordered to cease and desist therefrom and to take cer-
tain affirmative action to effectuate the policies of the
Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed12
ORDER
The Respondent, Sheet Metal Workers International
Association , Local 208, Springfield , Missouri, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Violating Section 8(b)(1)(A) of the Act by restrain-
ing and coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act by charging,
subjecting to trial , and fining the above -named employ-
ees, in contravention of the no-retaliation agreement be-
tween the parties and/or by not accepting the lawful res-
ignations of all of the above-named employees with the
exceptions of Bill Nicholson.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind all fines and expunge all record of actions
heretofore taken which resulted in the charging , trying,
and fining of the above-named employees , including,
without limitation, filing of charges, publicity of trial,
and trial.
(b) Post at its Springfiled , Missouri business office and
meeting halls copies of the attached notice marked "Ap-
pendix."13 Copies of the notice , on forms provided by
the Regional Director for Region 17, 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 cus-
12 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.
is 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 "
SHEET METAL WORKERS LOCAL 208 (MUELLER CO) 649
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Mail to the Regional Director for Region 17 signed
copies of said notice for posting by Paul Mueller Compa-
ny, if that company is willing , in places where notices to
employees are customarily posted . Copies of the notice,
to be furnished by the Regional Director for Region 17,
after being duly signed by the Respondent's authorized
representative, shall be furnished forthwith to the Re-
gional Director for Region 17.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. -