Sheet Metal Workers' Local Union No. 22 Of New Jersey (Paul Miller Sheet Metal, Inc.)

National Labor Relations Board - Board Decisions

Oct 5, 1989

296 N.L.R.B. 1146 (N.L.R.B. 1989)

1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers' Local Union No . 22 of New
Jersey (Paul Miller Sheet Metal, Inc.) and
Richard Zimmerman and Bernard Yamakaitis
and Sheet Metal Workers' International Asso-
ciation Local Union No . 27, AFL-CIO and
Sheet Metal Contractors' Association of Union,
Morris, Somerset and Sussex Counties, New
Jersey. Cases 22-CB-5882, 22-CB-5949, and
22-CB-5953
October 5, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On March 31, 1989, Administrative Law Judge
Steven Davis issued the attached decision . The Re-
spondent and Sheet Metal Contractors' Association
of Union, Morris, Somerset and Sussex Counties,
New Jersey (the Association), filed exceptions and
supporting briefs,' and Charging Party Sheet Metal
Workers' International Association Local Union
No. 27, AFL-CIO (Local 27) filed cross-exceptions
and a brief in support of the cross-exceptions and
in response to the Respondent's exceptions. The
Respondent also filed an answering 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
conclusions2 only to the extent consistent with this
Decision and Order and to adopt the recommended
Order as modified.
The judge found that the Respondent (Local 22)
violated Section 8(b)(1)(A) of the Act by imposing
a court collectible fine on Richard Zimmerman, a
member of Respondent, because he also maintained
' The Association's exceptions consisted of a statement that it was
adopting and incorporating by reference the Respondent 's exceptions,
and relying on the Respondent 's brief
2 The judge found , and we agree , that the Respondent violated Sec.
8(b)(1)(A) and/or (2) of the Act by instituting internal union charges
against Bernard Yamakaitis , by imposing a court collectible fine on him,
and by failing and refusing to refer him to employment In adopting the
judge 's conclusion that the Respondent's failure and refusal to refer Ya-
makaitis to employment was unlawful , we find it unnecessary to rely on
the language the judge quoted from an administrative law judge's deci-
sion in Denver Stereotypes Local 13 (Denver Post), 231 NLRB 678 (1977)
The judge also noted that the expulsion of Bernard Yamakaitis from the
Respondent had not been alleged as an unfair labor practice and observed
that , had it been alleged, Yamakaitis ' expulsion for giving testimony at a
Board hearing would clearly violate the Act. Local 27 contends in cross-
exceptions that both it and the General Counsel asserted that any disci-
pline of Yamakaitis in retaliation for his testimony at a Board proceeding,
including expulsion , is violative of the Act The General Counsel filed no
exceptions to the judge 's decision We have carefully reviewed the com-
plaint and find no allegation that the Respondent's expulsion of Yamakar-
tis was unlawful . We find it unnecessary to pass on the judge's further
observation that, had it been alleged , the expulsion would violate the
Act
membership in Sheet Metal Workers ' International
Association , Local Union No. 28 , AFL-CIO
(Local 28). The Respondent excepts , contending
that because of the proviso to Section 8(b)(1)(A), it
is outside the scope of the Act for the Board to
interfere in the internal affairs of a union where the
union tries and fines members for acts of dual un-
ionism, disloyalty , or such similar conduct.3 For
the reasons set forth below , we reverse the judge's
conclusion that the Respondent 's fining of Zimmer-
man was unlawful.
Zimmerman had been a member of Local 28
since 1981 when the International Union directed
that its then Local 22 merge with Local 28 . Rather
than merge with Local 28, the members of Local
22 voted to disaffiliate from the International and
form a new , independent Local 22. Zimmerman,
who had been a member of the internationally af-
filiated Local 22 since 1963 , testified that he was
told by leaders of Local 22 in 1981 when the
merger first went into effect to pay dues to Local
28 also , and that he has been a member of and paid
dues to both unions since that time.4
Zimmerman applied for a teaching position in
the Respondent 's evening school for apprentices
sometime in 1987 . In May 1987 he received a call
from the Respondent 's president , Al O'Neill, who
told him to withdraw his teaching application.
O'Neill told Zimmerman that as long as he contin-
ued paying dues to Local 28 he would never
become a teacher in the apprentice school. Zim-
merman testified that he believed that O'Neill also
told him that he had notified the executive board
of the situation , "of me paying double dues and
that he was trying to nip it all in the bud."
Subsequently , on January 11, 1988 , O'Neill
brought internal union charges against Zimmerman
for violating a provision of the Respondent's con-
stitution , which prohibits dual unionism .5 The Re-
a Sec 8(b)(1)(A) of the Act states as follows.
It shall be an unfair labor practice for a labor organization or its
agents-
(1) to restrain or coerce (A) employees in the exercise of the rights
guaranteed in section 7 : Provided, That this paragraph shall not
impair the right of a labor organization to prescribe its own rules
with respect to he acquisition or retention of membership therein
4 Apparently most of the Local 22 members paid dues to Local 28 for
an interim period in 1981 when they were involved in the disaffiliation
movement , for Bernard Yamakaitis also testified that he and a majority of
the Local 22 members paid dues to Local 28 at that time
s The provision reads
Article IV, Section 5-Membership in One Union : No member shall be
permitted to hold membership in any other union other than this
Union at the same time nor be permitted to pay dues or assessments
into any other union , directly or indirectly , other than this Union, as
a condition of membership for employment , except to a building
trade's council or other similar type body . Dual unionism shall be
grounds for expulsion from this Union.
296 NLRB No. 150
SHEET METAL WORKERS LOCAL 22 (MILLER SHEET METAL)
spondent held a hearing with respect to these
charges before Local 22' s trial board . Zimmerman
appeared at the hearing and, according to the min-
utes , denied that he had ever admitted to O'Neill
that he paid dues to Local 28, but acknowledged
that when O'Neill had asked him to stop paying
dues to Local 28 he had responded that O'Neill
was asking something he could not do. Zimmerman
would not answer whether he was currently
paying Local 28 dues when asked that question at
the hearing. Zimmerman stated that he felt he was
being singled out and being discriminated against,
and asked to see some proof to back up the
charges . O'Neill replied that others had verified
Zimmerman 's membership in Local 28, and that his
employer, Paul Miller Sheet Metal , Inc., had told
O'Neill that Zimmerman admitted membership in
Local 28.
The trial board found Zimmerman guilty of vio-
lating article IV, section 5, of the Respondent's
constitution , and recommended that he be fined
$4000 and suspended from Local 22. At a meeting
held on February 10, 1988 , the membership voted
to accept the trial board's decision . Zimmerman
never resigned his membership in Local 22, nor did
he appeal the trial board's decision.
For some time prior to the Respondent's disci-
plining of Zimmerman , Local 28 had been solicit-
ing authorization cards and encouraging employees
represented by the independent Local 22 to reaffili-
ate with Local 28 and the International Union. The
Association has entered into collective-bargaining
agreements with Local 22, which it continued to
recognize following Local 22's disaffiliation. How-
ever, in June 1988 Local 28 engaged in organiza-
tional activities and filed petitions to represent em-
ployees of some of the Association's member em-
ployers including Paul Miller Sheet Metal (Miller),
which was Zimmerman 's employer at the time of
the operative events in this case.6
Zimmerman testified that he was aware of two
organizing drives conducted at Miller 's by Local
28-one in 1983 or 1984 , and one in 1987 shortly
before he was brought up on charges in January
1988. Zimmerman told of representatives of Local
28 being on Miller's premises in October or No-
vember 1987, talking with employees on their
lunch hour. The Respondent was aware of these
activities , Zimmerman stated , because he observed
a representative of the Respondent come to the
shop on the day following one such visit and speak
with an employee who had been talking to the
Local 28 organizer. Zimmerman could not hear
6 Local 28 filed a petition seeking to represent Miller's employees on
June 7 , 1988 As a result of the unfair labor practice allegations , the rep-
resentation proceeding was held in abeyance
1147
what was being said , but averred that the Local 22
representative was speaking to the employee in an
unfriendly tone and that he was "trying to get a
message across to this fellow ." The Local 28 orga-
nizer had not spoken with Zimmerman , nor did the
Respondent 's representative do so.
Local 28 International Organizer Charles Peters
testified that he had engaged in organizing activi-
ties at Miller 's from December 1986 to the time of
the hearing . The Respondent 's president , O'Neill,
admitted that he had been aware of Local 28's or-
ganizing activities at employers represented by
Local 22 since the early spring of 1988.
Based on the above facts , the judge found that
the Respondent had fined Zimmerman in order to
discourage him and other employees of Miller from
supporting Local 28 in its organizational campaign.
The judge noted that the campaign had, as its in-
tended purpose , the filing of a representation peti-
tion in which Local 28 would seek to represent the
employees of Miller . Thus, the fine tended to re-
strain and coerce employees in their right of free
access to the Board and the invocation of the
Board 's processes in their behalf by the filing of a
petition by Local 28 , the judge concluded.
We find that there is not a sufficient nexus here
between the Respondent's fining of Zimmerman for
maintaining dual membership and the invocation of
the Board's processes to render that fine unlawful.
At issue is the proper accommodation of the Re-
spondent 's right to regulate its internal affairs and
the employee's right to have free and unimpeded
access to the Board 's processes . The Board and
courts have long recognized that Congress in en-
acting Section 8(b)(1) did not intend to regulate the
internal affairs of unions, and that the proviso to
that section preserves the rights of unions to
impose fines as well as to expel members .7 As the
Board has stated:8
The Supreme Court in Allis-Chalmers recog-
nized that the right of collective bargaining is
a paramount policy of national labor law and
that , in order for a union to fulfill this obliga-
tion, it must be able to promulgate its own
rules and have the right to impose reasonable
discipline on members who do not obey such
rules . The Court further found that integral to
this policy is the union's right to protect itself
against the erosion of its status of collective-
bargaining representative by reasonably disci-
plining members for violating internal regula-
tions. [Footnote omitted.]
7 NLRB v Allis-Chalmers Mfg. Co., 388 U S 175, 191-192 (1967)
8 Meat Cutters Local 593 (S & M Grocers), 237 NLRB 1159, 1160
(1978)
1148 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Supreme Court , in the seminal case of Scofield
v. NLRB, observed:9
§ 8(b)(1) leaves a union free to enforce
a properly adopted rule which reflects a legiti-
mate union interest , impairs no policy Con-
gress has imbedded in the labor laws, and is
reasonably enforced against union members
who are free to leave the union and escape the
rule.
The Respondent 's constitutional article prohibit-
ing dual unionism is a lawful provision . No party
has argued that it is facially invalid or was improp-
erly adopted , and it appears to have been promul-
gated pursuant to a valid union objective of insur-
ing the loyalty of its members . The rule thus re-
flects a legitimate union interest .' 0 As Zimmerman
was free to resign from the Respondent and escape
the rule had he chosen to do so , the question to be
determined under the teaching of Scofield is wheth-
er the rule as applied to Zimmerman impairs any
policy Congress has imbedded in the labor laws. If
the rule as applied invades or frustrates an overrid-
ing policy of the labor laws, the rule may not be
enforced without violating Section 8 (b)(1).
Clearly, there is an overriding public labor
policy in insuring unimpeded access to the Board's
processes by employees . The judge noted a number
of Board decisions in which violations of Section
8(b)(1)(A) have been found where individuals were
disciplined for exercising Section 7 rights aimed at
invoking the Board 's processes." In all of those
cases, however, the individuals at issue had en-
gaged in some activity that was at the least an ini-
tial step in actively invoking access to the Board.' 2
Here , by contrast , there is simply no evidence that
Zimmerman ever did anything in support or fur-
therance of Local 28 's organizing drive. As found
by the judge , he did not solicit cards for it or sup-
port its replacement of the Respondent. He merely
maintained membership , as he had done since 1981
when the Respondent refused to merge with Local
28 and became an independent union.
9 Scofield Y NLRB , 394 U S 423, 430 (1969)
10 There also is no contention that the Respondent 's enforcement of its
provision prohibiting dual unionism affected Zimmerman 's employment
status
Cases cited by the judge included instances where we have found
unlawful a union 's fining of employees for, inter alga, initiating decertifi-
cation petitions , supporting rival unions by signing authorization cards
and soliciting other employees to sign such cards or otherwise support a
rival union , and for essential preliminary work such as obtaining signa-
tures on a petition prior to its filing with the Board
12 Roofers Local 81 (Beck Roofing), 294 NLRB 286 ( 1989), is not to the
contrary There , we found that a union that fined employees for initiating
and/or signing a petition to repudiate their union violated Sec 8(b)(1)(A)
even though the petition was only given to the employer and not filed
with the Board . While the employees ' petition had not directly invoked
the Board 's processes , it was decertification-like activity that is an initial
step in access to the Board.
We decline to extend to the facts of this case the
holdings in finding unlawful a union's actions
against employees for invoking the Board 's proc-
esses . Zimmerman was fined only for dual member-
ship . He was not fined for engaging in activity on
Local 28 's behalf which had the objective of gain-
ing sufficient employee support to file a petition, or
for preliminary work attendant to the filing of a
petition , or for any other activity directed at invok-
ing the Board 's processes . Nor has Zimmerman's
dual membership been shown to be related to the
filing of Local 28 's petition . Union membership
standing alone is not an activity directed at invok-
ing the Board 's processes. Any connection between
the Respondent 's disciplining of Zimmerman and
the activities of other employees involved in Local
28's organizational efforts is simply too attenuated
to be violative of the Act.
We have here only a union that has fined its
member for violating a valid prohibition against
dual unionism enacted to insure the loyalty of its
members. That rule impairs no policy imbedded in
the labor laws, either on its face or as applied here.
Accordingly, we shall modify the judge 's recom-
mended Order and dismiss those portions of the
complaint relating to the Respondent 's fining of
Zimmerman.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Sheet Metal Workers ' Local Union No.
22 of New Jersey, Linden , New Jersey , its officers,
agents, and representatives , shall take the action set
forth in the Order as modified.
1. Delete paragraph 1(a) and reletter the subse-
quent paragraphs.
2. Substitute the following for paragraph 2(a).
"(a) Rescind the internal union charges brought
against Bernard Yamakaitis and the fines imposed
on him. Expunge any reference thereto from its
files and records and immediately notify Yamakaitis
of such action."
3. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the complaint alle-
gations relating to the imposition of court collect-
ible fines on Richard Zimmerman are dismissed.
SHEET METAL WORKERS LOCAL 22 (MILLER SHEET METAL) 1149
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT institute internal union charges
against and impose court collectible fines on Ber-
nard Yamakaitis because he expressed support for
Local 28 and testified at a representation hearing in
Cases 22-RC-9967 and 22-RC-9970.
WE WILL NOT fail or refuse to refer Bernard Ya-
makaitis to employment with members of Sheet
Metal Contractors' Association of Union, Morris,
Somerset and Sussex Counties, New Jersey, be-
cause he expressed support for Local 28 and testi-
fied at a representation hearing, set forth above.
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 rescind the internal union charges
brought against Bernard Yamakaitis and the fines
imposed on him and expunge any reference thereto
from our files and records and immediately notify
Yamakaitis of such action.
WE WILL accept and give effect to the valid res-
ignation from full membership of Bernard Yama-
kaitis, and recognize his financial core status.
WE WILL maintain and operate our exclusive
hiring hall referral system in a nondiscriminatory
manner.
WE WILL make whole Bernard Yamakaitis for
any loss of pay or other benefits suffered by reason
of the discrimination against him.
SHEET METAL WORKERS' LOCAL
UNION No. 22 OF NEW JERSEY
Marta Figueroa , Esq., for the General Counsel.
John A . Craner, Esq. (Craner, Nelson, Satkin & Scheer), of
New York, New York, for the Respondent.
James Katz, Esq. (Tomar, Parks, Seliger, Simonoff &
Adourian), of Haddonfield , New Jersey , for Local 27.
Ronald L Tobia, Esq. and Kent A. Weisent, Esq.
(Schwartz, Tobia & Stanziale, P.A.), of Montclair, New
Jersey, for the Association.
DECISION
nard Yamakaitis on September 12, 1988, in Case 22-CB-
5953 by Sheet Metal Workers' International Association,
Local Union No. 27, AFL-CIO (Local 27), a consolidat-
ed complaint was issued against Sheet Metal Workers'
Local Union No. 22 of New Jersey (Respondent) on Oc-
tober 28, 1988.
The complaint names, as a party in interest, the Sheet
Metal Contractors' Association of Union, Morris, Somer-
set and Sussex Counties, New Jersey (Association).
The complaint essentially alleges that Respondent (a)
imposed a court collectible fine upon Zimmerman, its
member, because he maintained membership in Sheet
Metal Workers' International Association, Local Union
No. 28, AFL-CIO (Local 28), and (b) instituted internal
union charges against Yamakaitis, imposed a court col-
lectible fine upon him and failed and refused to refer him
to employment because he expressed support for Local
28 and testified at a National Labor Relations Board
hearing, notwithstanding that he tendered a valid resig-
nation from Respondent.
Answers were filed by Respondent and the Associa-
tion, which essentially denied the commission of the
unfair labor practices alleged. On January 19 and 20,
1989, a hearing was held before me in Newark, New
Jersey. Upon the entire case, including my observation
of the demeanor of the witnesses and after consideration
of the briefs filed by the General Counsel, Local 27, and
Respondent, and a statement in lieu of brief filed by the
Association, I make the following'
FINDINGS OF FACT
1. JURISDICTION
Paul Miller Sheet Metal, Inc. (Miller), a corporation
having an office and place of business in Linden, New
Jersey, has been engaged in the fabrication and erection
of wall sheet metal. Annually, Miller purchases and re-
ceives at its New Jersey facility products, goods, and
materials valued in excess of $50,000 directly from points
outside New Jersey.
The Association, an organization composed of employ-
ers engaged in the fabrication and erection of wall sheet
metal, exists for the purpose, inter alia, of representing its
employer-members in negotiating and administering col-
lective-bargaining agreements with various labor organi-
zations, including Respondent. Miller, Casale Industries,
Inc. (Casale), and E & R Industries, Inc. (E & R) have
been and are now employer-members of the Association,
and have authorized the Association to represent them in
negotiating and administering collective-bargaining
agreements.
Annually, the Association caused to be purchased,
transferred, and delivered to construction jobsites in
New Jersey construction materials valued in excess of
$50,000 which were transported to jobsites in interstate
commerce directly from points outside New Jersey.
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant
to a charge filed on May 25, 1988, in Case 22-CB-5882
by Richard Zimmerman (Zimmerman), and a charge
filed on September 8, 1988 , in Case 22-CB-5949 by Ber-
' The General Counsel's brief notes that on February 10, 1989, the
U S District Court for the District of New Jersey issued an injunction
against Respondent Respondent has advised me that the court's order
states that it "shall not constitute a finding . that respondent has vio-
lated the Act .. "
1150 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent has admitted all the above facts, and has
also admitted that Miller and the Association are em-
ployers engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Also admitted are
the facts that Respondent and Local 28 are labor organi-
zations within the meaning of Section 2(5) of the Act.
ued independence, which included "six good years of
freedom ...."
2. The conflict between Respondent and its
members
a. Richard Zimmerman
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The conflict between respondent and the
International Union
Local 22 had been affiliated with the Sheet Metal
Workers' International Association, AFL-CIO (Interna-
tional) for 50 years prior to 1981. As such an affiliate, the
jurisdiction of Local 22 extended to four counties in
New Jersey-Union, Morris, Somerset, and Sussex-
which is coextensive with the Association.
Before 1981, the jurisdiction of Local 28 included
New York City.
In October 1981, for reasons unexplained on this
record, the International directed that Local 22 merge
with Local 28.
Rather than merge with Local 28, the members of
Local 22 voted to disaffiliate from the International and
in December 1981, a new organization, known as Sheet
Metal Workers' Local No. 22 of New Jersey (Respond-
ent) was formed.
As a result of Respondent's disaffiliation from the
International, it was not bound by any territorial con-
straints of that body, and accordingly expanded its juris-
diction to encompass the entire State of New Jersey. The
International reacted by extending the jurisdiction of
Local 28 to include Morris and Union counties, in addi-
tion to New York City.
The Association, which had a collective-bargaining
agreement with the Respondent before 1981, continued
to recognize it after the disaffiliation, and in fact entered
into a new collective-bargaining agreement with it in
1984, and an addenda in 1986.
Charles Peters, an organizer for the International,
stated that he organized at Miller from December 1986
to the time of the hearing. He further stated that in Janu-
ary 1988, he visited Miller's shop and jobsites, where
Casale, and other employers under contract with Re-
spondent were working. Peters stated that he solicited
authorization cards for Local 28 and encouraged em-
ployees, who are members of Respondent, to reaffiliate
with Local 28 and the International.
On June 3 and 7, 1988, petitions for representation
were filed by Local 28 in which that Union sought to
represent the employees of Casale and Miller, respective-
ly.
O'Neill, the president of Respondent, testified that in
the early spring of 1988 (or the summer of 1988) he was
aware of Local 28's organizing activity within the Re-
spondent's jurisdiction. On May 10, 1988, O'Neill sent a
letter to Respondent's members asking them not to sign
anything given to them by the International. The letter
accused the International of attempting to "break up"
Respondent, and urged its members to support its contin-
Richard Zimmerman has been a member of Local 22
since 1963. At the time of the disaffiliation of Local 22,
Zimmerman was also a member of Local 28 and was
then employed by Miller. Zimmerman also testified that
he was told by certain officials of Local 22 at that time
that he should retain his membership in Local 28, which
he did.
Zimmerman stated that some time in 1987 he submit-
ted an application to teach in Respondent's apprentice-
ship school. On May 11, 1987, O'Neill, the president of
Respondent, phoned him and told him to withdraw his
application. O'Neill told him that as long as he continued
paying dues to Local 28 he would never become a teach-
er in the apprenticeship school.2 O'Neill told Zimmer-
man that he notified Respondent's executive board that
he was paying dues to two locals, and said that he was
trying to "nip it in the bud." This was Zimmerman's first
conversation with O'Neill or any official of Respondent
concerning his membership in Local 28. Zimmerman
then withdrew his application to teach. At that time,
Local 28 was not organizing at Miller.
Zimmerman stated that in about October or November
1987, Local 28 representatives visited Miller, where he
was employed, and spoke to employee Kulman and
others, but not Zimmerman. The next day Edward Gal-
lagher, Respondent's business manager, came to Miller's
premises and spoke to Kulman in an unfriendly voice.
Zimmerman did not hear what they spoke about.
On January 11, 1988, O'Neill brought internal union
charges against Zimmerman for violating the Respond-
ent's constitutional provision, as follows:
Article IV Section 5-Membership in One Union:
No member shall be permitted to hold membership
in any other union other than this Union at the
same time nor be permitted to pay dues . . . into
any other union . . . other than this Union, as a
condition of membership for employment ... .
Dual unionism shall be grounds for expulsion from
this Union.
In the letter advising Zimmerman of the charges,
O'Neill stated that Zimmerman admitted that he is
paying dues to Local 28. The letter also stated that
O'Neill verified that Zimmerman is a dues-paying
member of that union.
A trial was held on the charges, which Zimmerman at-
tended. According to the trial's minutes, Zimmerman
denied admitting paying dues to Local 28, but conceded
2 Respondent 's answer denied that O'Neill, its president, is its agent.
O'Neill testified that it is his function as president to chair meetings, to
ensure that the officers perform their duties and the workers are properly
represented; and to authorize expenditures of funds It is clear that
O'Neill is an agent of Respondent , and I so find.
SHEET METAL WORKERS LOCAL 22 (MILLER SHEET METAL)
that O 'Neill asked him to stop paying dues to that Union
and he refused . Zimmerman refused to answer whether
he was currently paying dues to Local 28, and offered
the defense that he was being "singled out and being dis-
criminated against ." Zimmerman asked to see the proof
against him. O 'Neill replied that others verified his mem-
bership in Local 28, and that his employer, Miller, told
O'Neill that Zimmerman admitted membership in Local
28.
The trial board found Zimmerman guilty as charged,
and recommended that he be fined $4000 and suspended
from Respondent. Thereafter, at a meeting held on Feb-
ruary 10, 1988, the membership voted to accept the trial
Board 's decision.
Zimmerman stated that he never resigned his member-
ship in Respondent.
b. Bernard Yamakaitis
Yamakaitis has been a member of Local 22 since 1961.
He was elected business agent of that union in 1980. He
stated that at the time of the disaffiliation movement, his
personal opinion was that he would have preferred that
Local 22 remain with the International, but since he was
business agent he believed that he had to support the
wishes of the members, and went along with the disaffili-
ation drive. He was also a trustee of all of Local 22's
funds, and remained a trustee until July 1988.
In 1981, the International discharged Yamakaitis as
business agent because of Local 22's actions in disaffiliat-
ing from it. In addition , the International fined him
$20,000 and expelled him from Local 28.
In 1983, Yamakaitis was elected business agent of Re-
spondent , and served in such capacity until 1985.
Yamakaitis stated that in the past couple of years, he
and O'Neill engaged in 7 or 8 "light conversations" con-
cerning Respondent 's future. Yamakaitis expressed the
opinion that perhaps Respondent should think about reaf-
filiating with International . O'Neill was opposed to reaf-
filiation.
As set forth above, in 1988 the International , in behalf
of Local 28, was organizing employees of Casale. Yama-
kaitis was at that time employed by Casale. He stated
that in early 1988 he first met Charles Peters, the Inter-
national 's organizer , and he was asked to support Local
28.
On June 4, 1988 , Yamakaitis sent the following letter
to Respondent , which it received:
Declaration of Financial Core Status:
I Bernard Yamakaitis employed by Casale Indus-
tries, do not want to be a member of Sheet Metal
Workers Local Union 22. However, I am willing to
pay the equivalent of initiation fees and Union dues
as a condition of my employment. This is my right
under Federal law.
The letter was received by Respondent on June 5 or 6.
On June 6, Yamakaitis sent the following letter to the
membership of Respondent:
1151
This is an open letter to all of my friends in
Local #22 that I hope to show my reasons for my
moves to go back to the International Union.
What we had done 6-1/2 years ago to disaffiliate
ourselves from the International , because we did
not agree with the merge order may have been our
true strong feelings at that time, but it is now time
to step back and take a look at ourselves to learn
from the past and look to the FUTURE.
I do not believe we are as independent and free
as we had hoped , many men have found out they
can not speak out for fear of what they say will get
back to their employer or their Union. The men
have lost interest in going to Union meetings, or if
they do attend , don't participate.
I have been told by other officers that we are not
the same, and (I agree) and that I should and have
to change . Well, I guess I can ' t! I believe this situa-
tion will get worse in the future . Job opportunities
are something I am and we should all be concerned
about, men are losing many months of work with
no real job opportunity. When and if they are fortu-
nate to get a job, it is only until the next slow
down , then they wait again . Even if you feel secure
for the moment, what would happen if your em-
ployer decided to close the doors tomorrow?
Do not let SMOKE cloud your eyes, get a good
clear look into the future . I have talked to the other
officers of Local 22 directly and indirectly on these
matters, some are concerned & others just shrug
their shoulders and walk away only now to be con-
cerned because the international is knocking at our
door . . . . for shame to [sic] late!!!! I could go on
with a litany of reasons, but I choose not to, my
friends know the reasons for my actions and my
true friends will always be there.
My detractors and enemies , I have been taught to
pray for, therefore I will remember you in my Mass
on Sunday.
Yamakaitis testified that on June 7 O'Neill called him
and asked if he was doing the "right thing?" and also
asked if had a "deal " with Local 28. Yamakaitis replied
that he had everything taken care of O 'Neill responded
that he would take care of Yamakaitis ' three sons, who
were members of Respondent.
On June 13, O'Neill sent the following letter to Re-
spondent 's members:
Recently you may have received a letter from
Bernard Yamakaitis . In this letter he is telling you
that he has made a deal with the International
Union and they are to take him back into their
"grasp ." He feels that we should all join him. Ber-
nie's letter was just one small part of the price he
must pay in order to buy his way back ino the
International Union . I wonder what else Bernie had
to give them?
Bernie's letter came as a complete surprise to me
because it was just a few months ago that he in-
formed me that he was going to ask the Trustees of
the Pension, Welfare and Annuity Funds if he could
1152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
attend a seminar on June 6th in Nevada . June 6,
1988 is the exact date on which Bernie wrote his
letter.
I can not understand when Bernie made up his
mind about the "Future" of our Local Union 22?
Was it before he asked to attend the seminar?
The "Future" of Sheet Metal Workers' Local
Union No. 22 (our local) is as bright as ever. We
have had a very good six and one-half years and
will continue to have many more . To all my Broth-
ers! We have a strong and independent union and
have overcome every attempt the SMWIA has
made to interfere with our right to work . We also
have the support and respect of all the other trades
in New Jersey . Our Union will continue to grow
and prosper despite the efforts of the SMWIA to
overthrow and destroy our Local Union.
We are now in negotiation and I can assure you
that you will be well satisfied with the outcome.
PS: I too pray for my enemies but I also was
taught never to betray my trusted friends.
Sometime before July 1, the International Association
Organizing Team sent a letter to the membership of Re-
spondent , asking those members to sign cards for the
International in anticipation of its filing petitions on July
1. The letter included a quote from Yamakaitis' June 6
letter.
Yamakaitis was subpoenaed by Local 28's attorney to
testify at the Board hearing on the petitions filed by that
Union . He testified at that hearing on July 22 . The fol-
lowing day he sent a letter to Respondent , as follows:
"Effective immediately , I resign as trustee from all Local
#22 Sheet Metal Workers Fringe Benefit Funds."
On July 25, Edward Gallagher, Respondent 's business
manager, sent a letter to Respondent, bringing charges
against Yamakaitis under the following provision of its
constitution:
Article VII, Section 1(e) and (1) Misconduct and
Penalties-Officers, Members and Representatives3
.. . any officer or member of this Union may, after
trial and conviction on any of the following of-
fenses, be reprimanded , fined, removed from office,
suspended or expelled as the evidence may warrant.
(e) Attempting, inaugurating or encouraging seces-
sions from this Union or advocating or encouraging,
directly or indirectly , any dual labor movement.
(1) Engaging in any conduct which is detrimental to
the best interest of this Union and which tends to
bring said union into disrepute.
Reason for charges:
Enclosed letter mailed to all members of Sheet
Metal Local 22 of New Jersey from you, Bernard
Yamakaitis, stating your intention to join the Inter-
national Union and encouraging all members of
3In its letter of charges Respondent incorrectly charged Yamakartts
with violating sec 1(i) However, the provision quoted in the July 25
letter was sec 1(1), which is set forth above. In later correspondence, the
correct provision, sec 1(1) was cited.
Local 22 to leave also and join the International
Union.
On August 4, Yamakaitis was advised by Respondent
of a trial to be held on the charges , on August 25.
On August 9, Yamakaitis sent a letter to Respondent,
as follows : "Based on my Financial Core status , I am not
subject to the charges filed against me."
On August 16, Respondent replied , in relevant part, as
follows : "The constitution and by-laws of Sheet Metal
Workers Local Union 22 of New Jersey does not include
or recognize a Core member."
Yamakaitis did not attend the trial , which was held on
August 25. At the trial, which O'Neill chaired, three ex-
hibits were introduced . According to the minutes of the
trial , the exhibits were described as follows:
Exhibit 1: A letter sent to Local #22 members
from the International Association Organizing Team
quoting Bernie Yamakaitis in their letter.
Exhibit 2: A letter dated 6/6/88 from Bernie Ya-
makaitis to all local #22 members explaining his
move back to the I.A.
Exhibit 3: A copy of Labor Board hearing testi-
mony of Bernie Yamakaitis , pages 302-392, where
Mr. Yamakaitis voluntarily testified against Local
#22.
At the trial , Gallagher, displaying the transcript to
O'Neill, thumbed through it, showing its size. In so
doing, Gallagher was referring to the great length of
time that Yamakaitis testified.4
The trial board recommended that Yamakaitis be fined
$10,000 for each of the 2 violations , and expelled from
Respondent . On September 14, the membership voted to
accept the trial board's recommendations.
On August 22, Yamakaitis and employee Robert Yutz
were both laid off from Casale . Yutz had called Re-
spondent's office 3 days before and had been told to call
back when he was actually laid off. Yamakaitis called
Respondent 's office on August 22 and told O 'Neill that
he and Yutz had been laid off, and that they wanted to
be placed on the work list-the referral list to go to
work. O'Neill asked him what happened to Local 28.
Yamakaitis replied that he was still applying for work
with Respondent.
Hiring through the Respondent is done as follows: An
employee who is out of work calls the Respondent and
notifies it that he is available for work . He is then put on
a list . Workers are then referred to jobs in the order in
which they are on the list-the first person to call in gets
the next job . However, if the employee is a foreman, has
a specialty, such as a certified welder, or is requested by
an employer , that person is referred ahead of others on
the list.
4 As will be discussed , infra, Respondent argues that the sole purpose
of the introduction of the transcript of the Board hearing at the trial of
Yamakartis was to show that he testified therein that he was then a
member of Respondent I reject this contention O'Neill testified at the
instant hearing that the transcript was shown to him at Yamakaitis' trial
in order to demonstrate that Yamakaitis gave substantial additional testi-
mony besides his testimony concerning his membership in Respondent.
SHEET METAL WORKERS LOCAL 22 (MILLER SHEET METAL) 1153
The following day Yutz visited Respondent 's office
and asked O'Neill how many employees were out of
work. O'Neill told him that he, Yamakaitis , and one
other worker were unemployed . That evening, Yutz
called Gallagher and asked to be placed on the job list.
Gallagher asked why he wanted a job since he was
going to Local 28. Yutz replied that that was a misun-
derstanding ,5 and said that he wanted to work for Re-
spondent , adding that he would stay with Respondent.
Gallagher answered that he would put him on the list for
a job. Yutz asked Gallagher if he could solicit his own
work. Gallagher said that he could.
Yutz called employer Howard Taylor and asked for a
job. Taylor said he needed a worker and was busy. He
also said that he told Gallagher that if anyone was laid
off he should be sent to Taylor. Taylor said he would
call Gallagher and call Yutz back. By the following
morning, Taylor had not called Yutz. Yutz called him
and was told that he Taylor had spoken to Gallagher,
and that although nothing was wrong he learned that he
had workers returning from vacation and Yutz was not
needed.
The following day, Yutz visited Casale, and met with
Casale and Richard Rogge, Respondent 's recording sec-
retary, who was employed there. Rogge told Yutz that
he heard that he was having problems with Gallagher.
Yutz replied that it was a misunderstanding in that Galla-
gher believed that he attended the hearing voluntarily.
Rogge said that he understood , and asked if Yutz
planned on going to Local 28, adding that if Yutz intend-
ed to stay with Respondent he would call Gallagher and
try to resolve the matter . Yutz replied that he had no
plans to go to Local 28. Yutz then told Casale that if
there was work and he was not hired he would charge
the Company with a violation , and referred to his experi-
ence with Taylor. Casale said that if he had a job for
him he would hire him regardless of what Gallagher
said , but added that he could not do anything to hurt
Gallagher or make him angry . Yutz told the 2 men that
he would be out of state for a long weekend.
On Monday morning , Yutz returned home and learned
that Gallagher had called . Yutz called Gallagher back
and was told that a job was available at E & R , and had
been available, but Yutz was not home . Gallagher said
he could start the next day, August 30. Yutz began work
that day.
After August 22, Yamakaitis called Respondent every
week . About August 29, he made such a call and told
O'Neill that he was still available for work. O'Neill told
him that he was still on the list and asked what happened
at Local 28. Yamakaitis replied that he was still a dues
paying member of Respondent and was applying for
5 The misunderstanding arose from Yuti being subpoenaed by Local
28 to the Board hearing in July Before he testified he told Gallagher that
Local 28 subpoenaed him because it mistakenly believed that Respondent
would not refer him to work O'Neill asked Yutz why he received a sub-
poena When Yutz said he did not know , O'Neill asked if he signed a
card for Local 28 Yutz admitted that he had Yutz was told that if it was
a misunderstanding he should be excused from the subpoena and need not
testify They also told him to ask Local 28's attorney to excuse him Yutz
did so but was not excused , and testified at the hearing Thereafter, Gal-
lagher told Casale that Yutz' testimony did not hurt Respondent
work in Respondent . O'Neill answered that he was still
on the list.
On or about September 12, Yamakaitis called Re-
spondent and told O 'Neill that he was available for
work. O'Neill asked him what happended at Local 28.
Yamakaitis again said that he was avaiable for work.
O'Neill again asked what happended at Local 28, and
asked him if he remembered their conversation in June,
which Yamakaitis told him that he had a deal "cut in
stone" with Local 28. Yamakaitis replied that he did not
remember . O'Neill then told Yamakaitis that he was still
on the list.
On Tuesday, September 13, Gallagher called Yamakai-
tis and referred him to a job at Kenney Roofing
(Kenney). Yamakaitis then realized that the following
day he was scheduled to attend a Board hearing, for
which he had been subpoenaed . He called Gallagher and
told him that he could not work the following day be-
cause of the subpoena, but could work Thursday and
Friday. Yamakaitis added that he would be going on va-
cation the following week . Gallagher replied that the
hearing would be postponed . Yamakaitis replied that he
had not been notified . Gallagher advised that he call
Kenney anyway . Yamakaitis called Kenney and told a
representative that he could not work the following day
or the next week, but could work that Thursday and
Friday. Kenney's official told him that he had a 1-week
job and wanted someone to do the whole job , and there-
fore could not use Yamakaitis.
Yamakaitis went on vacation and returned on October
2. He called O'Neill on October 3 and told him that he
wanted to work. O'Neill replied that he had been sus-
pended, and asked why he is not applying for work at
Local 28. Yamakaitis answered that he is still seeking
work from Respondent.
On October 6, Yamakaitis went to the Respondent's
office and had his unemployment form stamped, as he
had done in the past . Gallagher told him that this was
the last time he would do so.
On or about October 19, an official of Midlantic Me-
chanical called Yamakaitis and asked if he wanted to
work with that company. Yamakaitis said he did. The of-
ficial said he would call Gallagher and request him.
Later that day, Gallagher called him and referred him to
work at Midlantic . He began work the next day and was
still employed there at the time of the hearing.
B. Evidence Concerning Referrals
The complaint alleges that from August 23 to Septem-
ber 14 and from October 3 to 20, 1988 , Respondent un-
lawfully failed and refused to refer Yamakaitis to em-
ployment with members of the Association.
Yamakaitis stated that from August 23 to September
14 he was unaware of any jobs that were available which
he was qualified to perform . He does not know who was
listed out of work ahead of him on or after August 22,
and he did not ask. He further testified that aside from
Yutz, no one was referred to work between August 23
and September 12. He stated that inasmuch as he and
Yutz had been laid off on the same day, either one could
have been referred first, and he does not question Yutz'
1154 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
referral before his. He further noted that between Octo-
ber 2 and 6 no employees were referred, to his knowl-
edge.
John Sirak, a member of Respondent , testified that in
August or early September 1988, he was employed by E
& R, performing renovation work, which included re-
moving duct work, welding , piping, moving and setting
heavy machinery, and driving forklift trucks. He ob-
served four millwrights working there for 3 to 4 weeks
performing work normally done by employees represent-
ed by Respondent, such as removing duct work, which
is sheet metal work. The millwrights and the sheet metal
workers, in fact, worked side by side, performing all the
above work together.
Sirak asked his foreman , who was a member of Re-
spondent , why the millwrights were doing sheet metal
work. The foreman replied that no one else was available
for work since no one was out of work, and people were
needed to complete the work. Sirak did not know if the
foreman called the Respondent 's office to request em-
ployees, and did not know if Respondent 's officials were
aware that millwrights were doing sheet metal work.
C. Additional Facts Concerning the Charges
and Fines
In the 8 years of its existence , the only persons
charged by Respondent with violations of its constitution
were Yamakaitis and Zimmerman . Other members who
left Respondent and joined Locals 27 and 28 were not
brought up on charges, but none of them sent a letter to
the members as Yamakaitis did.
O'Neill testified that the amount of the fine of Yama-
kaitis, $20,000, was a matter within the discretion of the
trial board, which decided that it (a) was a reasonable
amount considering the seriousness of the violation, (b)
would serve as a "signal" to the membership that Yama-
kaitis' conduct would not be tolerated, and (c) would
serve to advise them of the consequences of his actions.
At the time the fine was levied , Yamakaitis' annual
wage was $40,000 to $50,000.
III. ANALYIS AND DISCUSSION
Richard Zimmerman
The complaint alleges that on or about February 16,
1988, Respondent imposed a court collectible fine on
Zimmerman, its member, because he maintained member-
ship in Local 28.
Respondent knew of Zimmerman's memberhship in
Local 28 since at least May 1987, when Respondent's
president , O'Neill, told him that he was aware that he
was a member of Local 28 and would not permit him to
teach in the apprenticeship school as long as he was a
member of that union as he wanted to "nip it in the
bud."
In October or November 1987, Local 28 representa-
tives visited Zimmerman 's place of work and Miller, and
spoke to one employee there . The following day, Galla-
gher visited Miller and spoke to the same worker in an
unfriendly manner . Miller is a member of the Associa-
tion , and a Local 22 shop . Apparently, after the disaffili-
ation , Miller came within the jurisdiction claimed by
Local 28, and that union sought to organize it.
In January 1988, Respondent brought charges against
Zimmerman for violating its constitutional provision,
which prohibits members of Respondent from holding
membership in any other union, and which states that
"dual unionism" is grounds for explusion from Respond-
ent. Pursuant to that provision , Zimmerman was fined
$4000 and suspended from Respondent . Only the fine is
alleged to be unlawful here.
Section 8(b)(1)(A) of the Act states as follows:
It shall be an unfair labor practice for a labor or-
ganization or its agents-
(1) to restrain or coerce (A) employees in the ex-
ercise of the rights guaranteed in section 7: Provid-
ed, That this paragraph shall not impair the right of
a labor organization to prescribe its own rules with
respect to the acquistion or retention of membership
therein... .
In Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967), the
Supreme Court held that, pursuant to the above provi-
sion , a union may prescribe and enforce rules concerning
its membership. However, this authority is not unlimited.
In NLRB v. Marine & Shipbuilding Workers, 391 U.S. 418
(1968), the Court decided that a union has no power to
"penalize a member who invokes the protection of the
Act for a matter that is in the public domain and beyond
the internal affairs of the union ." In that case a member
was expelled for filing a charge against the union with
the Board . The Court stated that "matters of overriding
public interest makes unimpeded access to the Board the
only healthy alternative , except and unless plainly inter-
nal affairs of the union are involved."
In Scofield v. NLRB, 394 U.S. 423, 430 (1969), the Su-
preme Court stated that if the union's rule "invades or
frustrates an overriding policy of the labor laws the rule
may not be enforced." The Court summarized this area
as follows:
[Section] 8(b)(1)(A) leaves a union free to enforce a
properly adopted rule which reflects a legitimate
union interest , impairs no policy Congress has im-
bedded in the labor laws, and is reasonably enforced
against union members who are free to leave the
union and escape the rule.
The General Counsel argues that Respondent's con-
duct in fining Zimmerman is unlawful based on the
public policy interest in ensuring free and unimpaired
access to the Board 's processes . She contends that by
fining Zimmerman, Respondent thereby restrained or co-
erced other employees of Miller into refusing to support
Local 28's organizing drive. By thus coercing its mem-
bers, Respondent impeded the future access to the Board
by Local 28 by interfering with its obtaining of a proper
showing of interest necessary to file a petition.
The Board has found violations of Section 8(b)(1)(A)
where a union has fined an employee for initiating a de-
certification petition Allied Workers Local 125 (Black-
hawk Tanning), 178 NLRB 208 (1969). In that case, the
SHEET METAL WORKERS LOCAL 22 (MILLER SHEET METAL) 1155
Board stated that the effect of such a fine is "punitive-
to discourage members from seeking such access to the
Board 's processes."
Similarly, the Board has found such fines to be unlaw-
ful where employees engaged in activities in behalf of a
rival union , such as where they signed authorization
cards ; solicited other employees to sign such cards; or
spoke to coworkers about the need to replace the incum-
bent union . Inland Boatmen 's Union (Dillingham Tug),
276 NLRB 1261, 1270 ( 1985); Communications Workers
Local 6306 (Vactec), 212 NLRB 768, 772 (1974); Inde-
pendent Shoe Workers (U.S. Shoe), 208 NLRB 411 (1974);
Machinists Lodge 837 (McDonnell Douglas), 206 NLRB
662, 663 (1973); Textile Workers Local 953 (Visinet Mill),
189 NLRB 598, 604 (1971); Tri-Rivers Marine Engineers
(U.S. Steel), 189 NLRB 838 , 839 (1971).
In those cases the Board emphasized the importance of
protecting members from fines seeking to invoke its
processes . The fact that a petition in behalf of the rival
union had not yet been filed when the members were
fined was not fatal to a finding of a violation of the Act.
The Board reasoned that the members' solicitation of
cards for the rival union was for the purpose of invoking
the Board 's processes by the filing of a petition, and they
were fined for engaging in such "essential preliminary
work attendant to the filing of a petition ." Independent
Shoes, supra; Visinet Mill, supra . The Board has also
found that a fine imposed for voting against the union in
a decertification election violates Section 8(b)(1)(A).
Automotive Salesmen 's Assn. (Spitler-Demmer), 184 NLRB
608 (1970).
In the instant case , it does not appear that Zimmerman
engaged in any activity in behalf of Local 28 other than
being a member of that labor organization . He did not
solicit cards for it, or support its replacement of Re-
spondent . However, as argued by the General Counsel, I
believe that Respondent 's conduct in fining Zimmerman
tended to restrain or coerce employees of Miller into not
supporting Local 28's organizing drive . As set forth
above, Local 28's representatives visited Miller 's shop in
October or November 1987, while engaged in an orga-
nizing campaign which sought the replacement of Re-
spondent . Zimmerman was employed by Miller. Re-
spondent 's official visited the next day and spoke with
the same employee spoken to by Local 28's agent. Two
or three months later , Zimmerman was charged with
violating Respondent 's rule prohibiting membership in
unions other than Respondent.
In deciding this issue , the context in which the fine
was imposed must be examined . Respondent had disaffili-
ated with the International 7 years earlier after it was or-
dered to merge with Local 28. A bitter rivalry has ap-
parently developed between two unions , both claiming
jurisdiction over the same areas and shops . The Interna-
tional and Local 28 have actively sought to persuade
members of Respondent to reaffiliate with the Interna-
tional and join Local 28. Respondent has vigorously op-
posed this.
An issue exists as to Respondent's knowledge of Local
28's organizing drive at Miller . I find that it was aware
of it. Respondent's president , O'Neill, testified that he
had knowledge of the campaign in the early spring or
summer of 1988, and his letter of May 10 stated that he
was aware of letters sent by the International for the past
few months prior to May 10. In addition , Gallagher vis-
ited Miller 's premises one day after a visit by Local 28's
organizer and spoke to the same worker spoken to by
Local 28's agent . Moreover , in denying Zimmerman's re-
quest to teach because he was a member of Local 28,
O'Neill told him he wanted to "nip it in the bud ." In ad-
dition , International Organizer Peters credibly testified
that organizing activities have been conducted at Miller
since December 1986. It is therefore unlikely that Re-
spondent would not have known that the International
and Local 28 were engaged in an attempt to wrest Mil-
ler's shop from its representation.
Zimmerman finds himself caught in the middle of this
struggle. He is a member of both unions , and employed
in a shop under contract with Respondent but sought by
Local 28. Taking into consideration the background of
this dispute, which involves the strenuous opposition by
Respondent to any attempt by Local 28 to encroach
upon it territory, I find that Zimmerman was fined by
Respondent in order to discourage him and other em-
ployees of Miller from supporting Local 28 in its organi-
zational campaign . That campaign had, as its intended
purpose, the filing of a representation petition in which
Local 28 would seek to represent the employees of
Miller . Such a petition was ultimately filed on June 7,
1988.
The fines tended to restrain and coerce Zimmerman
and other employees of Miller from participating in
Local 28's organizing campaign.
Respondent 's actions [in finding its member for
signing authorization cards ] could well have pre-
vented the obtaining of the required number of au-
thorizations to support a timely petition for a certifi-
cation election . [ Visinet, supra at 604.]
Accordingly, I find and conclude that Respondent's
fine of Zimmerman tended to restrain and coerce em-
ployees in their right of free access to the Board and the
invocation of the Board 's processes in their behalf by the
filing of a petition by Local 28.6
IV. THE INTERNAL UNION CHARGES AND THE FINE
Bernard Yamakaitis
The complaint alleges that on July 25, 1988, Respond-
ent instituted internal union charges against Yamakaitis,
and on September 14 it imposed a court collectible fine
against him because he expressed support for Local 28
and testified at a representation hearing , and notwith-
standing that he tendered a valid resignation from Re-
spondent on June 4, 1988.7
6 Respondent's argument that since it did not seek collection of the fine
it has not violated the Act is without merit . In Machinists Lodge 405
(Boeing Co.), 185 NLRB 380, 381 (1970), the Board noted that "the impo-
sition of a fine has immediate coercive consequences "
r Yamakaitis' expulsion from Respondent has not been alleged as an
unfair labor practice . If alleged , it is clear that Respondent 's expulsion of
Yamakaitis for giving testimony at a Board hearing would violate the
Continued
1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent argues that Yamakaitis was properly fined
because of his support for a rival labor organization,
Local 28, specifically for the letter he sent to members of
Respondent on June 6, 1988, stating why he was return-
ing to the International , and urging others to do so. In a
letter in response , Respondent 's president , O'Neill, states
that Yamakaitis ' letter expressed the belief that "we
should all join him."
The internal union charges brought against Yamakaitis
alleged that he violated Respondent 's constitution, in
part, by "attempting , inaugurating or encouraging seces-
sion from this Union or advocating or encouraging .. .
any dual labor movement ." The June 6 letter was alleged
as the sole reason the charges were brought.
However, at the trial board hearing, one of the three
exhibits introduced was described in the trial board min-
utes as "a copy of Labor Board hearing testimony of
Bernie Yamakaitis, pages 302 -392, where Mr. Yamakaitis
voluntarily testified against Local #22." At the trial
board hearing , Respondent's official thumbed through
the transcript , showing its size and thereby referring to
the great length of time that Yamakaitis testified.
After the hearing, a $20,000 fine was recommended by
the trial board, approved by the membership, and im-
posed on Yamakaitis.
It is clear, based on the cases discussed above, that the
fine meted out to Yamakaitis violated Section 8(b)(1)(A)
of the Act on either or both of the grounds discussed at
the trial board hearing . Yamakaitis ' activities on behalf of
rival Local 28 did not constitute grounds for fining him.
Blackhawk Tanning, supra.
It is also clear that the trial board based its decision to
fine him , in part , upon his "voluntarily" given testimony
"against Local #22." Thus, Yamakaitis testified at a rep-
resentation hearing on a petition filed by Local 28, in
which it sought to represent employees of his employer,
Casale. His testimony, given on July 22 only 3 days
before Respondent instituted these charges against him,
was given in response to a subpoena served by Local
28's attorney. Casal was then under contract with Re-
spondent.
In addition , article VIII, section 1, of Respondent's
constitution and bylaws provides that internal union
charges must be filed not more than 30 days after the
charging party becomes aware of the offense. If, as
argued by Respondent, Yamakaitis was disciplined only
for the writing of the June 6 letter, the charges should
have been brought by July 6. However, no charges were
instituted until July 25 , long past the required filing time.
That the charges were imposed on July 25, only 3 days
after Yamakaitis ' testimony in behalf of Local 28 at the
representation hearing, is strong proof that the internal
union charges were brought because of such testimony.
The Board has long held that the imposition of fines for
testifying in support of a rival union at a Board represen-
tation hearing violates Section 8(b)(1)(A) of the Act.
Communications Workers Local 6306 (Vactec Inc.), 212
NLRB 768, 772-773 (1974).8
V. THE EFFECT OF THE RESIGNATION FROM
RESPONDENT
The General Counsel alleges that Respondent further
violated Section 8(b)(1)(A) of the Act by imposing inter-
nal union charges and fining Yamakaitis after he resigned
from it.
Respondent argues that Yamakaitis never effectively
resigned his membership in it, and it therefore was per-
mitted to take the actions it took.
Respondent 's constitution provides as follows:
Any member in good standing may sever his con-
nection with this Union by written resignation pro-
vided he has paid all dues and financial obligations,
he does not continue to work at any branch of the
trade covered by this Union, and his resignation is
accepted by this Union . No resignation shall be ac-
cepted if offered in anticipation of charges being
preferred , during the pendency of such charges.
On June 4, 1988, Yamakaitis sent a letter to Respond-
ent entitled "Declaration of Finanicial Core Status" in
which he stated that "I do not want to be a member of
Sheet Metal Workers Local Union 22. However, I am
willing to pay the equivalent of initiation fees and union
dues as a condition of my employment. . . ." The letter
was received by Respondent on June 5 or 6. Respondent
argues that the above letter does not constitute an effec-
tive resignation from it, but merely expresses Yamakaitis'
desire not to be a member . I do not agree.
In order to effectively resign from membership, it is
only necessary that the member "clearly indicate that he
no longer wishes to be bound by the union ." Electrical
Workers IBEW Local 340 (Hulse Electric), 273 NLRB
428, 432 (1984). "There is no requirement that an em-
ployee use any magic words in order to resign member-
ship from the union ." Shopmen's Local 539 (Zurn Indus-
tries), 278 NLRB 149, 152 (1986). Where an employee
states that I "wish to withdraw from the Union...."
Zurn , supra, or changes a form to indicate that "I retire
my membership in the union" instead of "I resign" etc.
Hotel & Restaurant Employees Local 50 (Dick's Restau-
rant), 287 NLRB 1180 (1988), the Board has found that
the member has effectively resigned from the union.
Respondent further argues that Yamakaitis ' testimony
at the representation hearing, which occurred after he
sent the letter and before any charges were imposed on
him, establishes that he did not effectively resign from it.
At the hearing, Yamakaitis was asked "and are you a
member of Sheet Metal Independent Union Local 22?"
He answered , "yes, I am," and stated that he has been a
member for about 28 years. Respondent seizes on this
Act In NLRB Y. Shipbuilders, 391 U.S 418, 424-425 ( 1968), the Supreme
Court recognized that maintaining unimpeded access to the processes of
the Board was kind of public interest that is "overriding " See Oil Work-
ers Local 4-23 (Gulf Oil), 274 NLRB 475 (1985), where the Board held
that a union violated Sec 8(b)(1)(A) of the Act by expelling a member
for testifying at a contractual arbitration hearing
8 Although employee Yutz testified at the same hearing and he was not
fined by Respondent, the cases of the two men are substantially different
Yamakaitis, a longtime official and founding member of Respondent, was
well known among the membership Yutz was simply a member of Re-
spondent, and its official had said that his testimony did not hurt it
SHEET METAL WORKERS LOCAL 22 (MILLER SHEET METAL) 1157
answer as proof that Yamakaitis considered himself to be
a member of Respondent , and therefore did not resign
through his letter of June 4. However, only seven ques-
tions later he was asked "and are you a full fledged
member currently of Local 22?" He replied: "No, pres-
ently I'm a core member of Local 22" and have been
such for about the previous 2 or 3 months.
In Carpenters Local 470 (Tacoma Boatbuilding), 277
NLRB 513 (1985), the Board found an effective resigna-
tion from full membership in the union through a letter
sent by a member which stated , inter alia, that he was
not resigning from the union , but only changing his
membership status from that of a "full" member to that
of a "financial core" member. The employee further
stated that as a "financial core" member he would con-
tinue to pay to the union all initiation fees and dues uni-
formly required of all members for maintaining member-
ship. The Board held that the letter "reasonably placed
the respective unions on notice that the members were
resigning from full union membership ." The Board held
that by their receipt of the financial core letters, the
unions were unable to discipline those persons for actions
taken by them thereafter. See Carpenters Seattle Council
(Gordon Construction), 277 NLRB 530 (1985).
Here, Yamakaitis' financial core letter clearly ex-
pressed his desire to cease being a full member of Re-
spondent, and his intent to become a financial core
member. The letter, combined with his testimony at the
representation hearing at which Respondent was a party,
further served to put Respondent on notice as to his in-
tention to become a financial core member . Respondent's
receipt of the letter on June 5 or 6 occurred before or on
the same day that he sent a letter to the membership on
June 6. In any event , Yamakaitis' letter to the member-
ship was not received until June 7, after his financial
core letter was received by Respondent. Thus, by impos-
ing charges against him and fining him for actions taken
after it received his financial core letter, Respondent vio-
lated Section 8(b)(1)(A) of the Act.
Respondent 's argument that its constitution does not
recognize financial core status is unavailing . The Su-
preme Court in NLRB v. General Motors Corp., 373 U.S.
734, 742 (1963), noted that:
It is permissible to condition employment upon
membership , but membership , insofar as it has sig-
nificance to employment rights, may in turn be con-
ditioned only upon payment of fees and dues.
"Membership" as a condition of employment is
whittled down to its financial core.
Recently, in Pattern Makers League v. NLRB, 473 U.S.
95 fn. 16 (1985), the Court stated:
Therefore , an employee required by a union -securi-
ty agreement to assume financial "membership" is
not subject to union discipline . Such an employee is
a "member" of the union only in the most limited
sense.
Accordingly , I find and conclude that the imposition
of union charges, and fines on Yamakaitis for conduct he
engaged in after Respondent received his financial core
letter violates the Act. Sheet Metal Workers Local 16
(Jacobs Heating), 286 NLRB 266 (1987). Respondent
argues that its constitution requires that a resignation
must be accepted by it before it is effective. However,
the Board has held that "when a union seeks to delay or
otherwise impede a member's resignation , it directly im-
pairs the employee 's Section 7 right to resign or other-
wise refrain from union or other concerted activities."
Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB
1330 (1984); Shopmen's Local 539 (Zurn Industries),
supra.
VI. THE REFUSAL TO REFER TO EMPLOYMENT
The complaint alleges that from August 23 to Septem-
ber 14 and from October 3-20, 1988, Respondent failed
and refused to refer Yamakaitis to employment with
members of the Association . The reason alleged for this
conduct is that Yamakaitis expressed support for Local
28 and testified at a representation hearing.
Respondent refers employees to work through an ex-
clusive hiring hall . Its operation consists of a worker
calling the hall when he is laid off, and requesting work
or the placement of his name on the work list . Workers
are referred to work in the order in which they call in-
with the first person calling in being the first one re-
ferred out. In cases where the worker has a specialty, is
a foreman , or is requested by an employer, he would be
referred before others on the list not having such at-
tributes.
As set forth above, Yamakaitis was laid off by Casale
on August 22. By that time, Yamakaitis had (a) resigned
from full membership in Respondent , (b) sent a letter to
the membership of Respondent advising that he was re-
turning to Local 28 and urged others to do so, (c) Re-
spondent had sent a letter to its members criticizing Ya-
makaitis' letter, (d) internal union charges were brought
against Yamakaitis which alleged that he violated Re-
spondent 's constitution by encouraging secession from it,
encouraging dual labor movement and engaging in con-
duct detrimental to it , and (e) been notified of a trial on
the charges.
On August 22, Yamakaitis called Respondent 's office
and told O'Neill that he and Yutz had been laid off, and
they wanted to be placed on the referral list. O'Neill
asked him what happened to Local 28. Yamakaitis re-
plied that he was still applying for work with Respond-
ent. Thereafter, Yamakaitis called Respondent every
week. On August 25, Yamakaitis' trial was held, he was
found guilty of violating the constitution , and it was rec-
ommended that he be fined $20 ,000 and expelled from
the Union . On each of the two occasions thereafter when
Yamakaitis called Respondent-August 29 and Septem-
ber 12-Yamakaitis advised O'Neill that he was available
for work, to which O'Neill asked what happened at
Local 28, adding that he was still on the list. In addition,
on September 12, O'Neill asked Yamakaitis if he remem-
bered their conversation in June, in which Yamakaitis al-
legedly told him that he had a deal " cut in stone" with
Local 28. On September 13, Gallagher called Yamakaitis
and referred him to a job which was to begin on Sep-
tember 14.
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Yamakaitis did not actually work on September 14 for
the reasons set forth above, and was on vacation until he
called Respondent on October 3. On that day he advised
O'Neill that he wanted to work. O'Neill told him that he
had been suspended , and asked why he was not applying
for work at Local 28 . Yamakaitis replied that he was still
seeking work from Respondent. On October 19, Yama-
kaitis was asked by an employer if he wanted to work.
He said he did. Gallagher then called him and referred
him to work at that employer, where he began work on
October 20.
I believe that the evidence supports the General Coun-
sel's theory of a violation in Respondent 's failure and re-
fusal to refer Yamakaitis.
The Board has held that in cases involving a failure to
refer an individual because of intraunion considerations,
the General Counsel is required to
[E]stablish that a particular individual engaged in
dissident activities , that these activities were known
to the Respondent , and that the individual sought
and was denied referral because of these activities.
Laborers Local 158 (Contractors of Pennsylvania), 280
NLRB 1100, 1101 (1986).
The evidence is clear that Yamakaitis' support for
Local 28 was well known, and his letter to the member-
ship and encouragement that they join that union were
also common knowledge. In fact, these activities were al-
leged in the internal union charges brought against him.
It is undisputed that Yamakaitis sought referrals during
the times alleged in the complaint and was not given any
referral. The issue therefore is whether Yamakaitis was
denied referral for his intraunion activities. The responses
made to Yamakaitis when he advised Respondent that he
was available for work and sought referral is instructive.
On each such occasion he was asked what was happen-
ing with Local 28, and on one occasion was asked di-
rectly why he was not applying for work with that
union. He was also reminded of a conversation in which
he allegedly told Respondent that he had a deal cut in
stone with Local 28. These responses all provide support
for a finding that Yamakaitis was refused referral because
of his support for Local 28, which includes his testimony
on its behalf at the representation hearing. He was never
told, when he requested referral, that no jobs were avail-
able. The most that he was told was that he was still on
the list.
Accordingly, I find that Respondent's failure and re-
fusal to refer Yamakaitis was due to his support for
Local 28 and his testimony in its behalf. " It is well estab-
lished that any attempt to derogate one's employment
status because of dual unionism is violative of the Act."
Denver Stereotypers (Denver Post), 231 NLRB 678, 686
(1977).
In making this finding, I do not rely on the fact that
Yutz had received a referral on August 30. He and Ya-
makaitis were laid off on the same day and a referral
could have been made to either of them. However, the
facts concerning that referral are instructive. When Yutz
first requested placement on the work list on August 23
he was asked by Gallagher why he wanted a job since
he was going to Local 28. (One month earlier, Yutz was
called to testify at a representation hearing by the attor-
ney for Local 28 .) He then pronounced his continued
loyalty to Respondent. Within 2 days, Yutz was told by
Respondent 's recording secretary , Richard Rogge, that
he heard that Yutz was having problems with Gallagher.
Yutz again said that he did not want to go to Local 28
and would stay with Respondent . Rogge told Yutz that
if Yutz wished to stay with Respondent Rogge would
call Gallagher and try to resolve the matter . Shortly,
thereafter Yutz was referred to E & R.9
In making this finding, I do not rely on the testimony
of Sirak concerning the fact that millwrights were per-
forming sheet metal work at E & R in August or early
September . The General Counsel argues that this testi-
mony shows that work was available for sheet metal
workers, but that Yamakaitis was not referred to perform
such work . Sirak 's testimony only established that mill-
wrights were doing sheet metal work , and the sheet
metal workers were doing millwrights work and the
work of other trades on that job. There was no showing
that the foreman sheet metal worker who told Sirak that
no sheet metal worker was out of work was an agent of
Respondent , and there was no evidence that Respondent
was aware that millwrights were performing sheet metal
work or that there was a need for sheet metal workers.
In any event , the Board has consistently held that
"where discrimination is directed against political oppo-
nents the General Counsel does not have to show ever
that jobs were available at the time of request for refer-
ral." Laborers Local 158, supra at 19. The only require-
ment is that the alleged discriminatee show that he re-
quested referral during the relevant period. Carpenters
District Council of Ohio Valley (Catalytic), 267 NLRB
1223, 1228-1229 (1983); Painters Local 277 v. NLRB, 717
F.2d 805, 813 (3d Cir. 1983). The reason for this is that
the violation consists of the union's refusal to refer be-
cause of the employee's union politics , and a prima facie
case is established because he has been refused referral
for that reason , regardless of whether any jobs were
available at the time of his request for referral.
I accordingly, find that the General Counsel has made
a prima facie case of discrimination in Respondent 's fail-
ure and refusal to refer Yamakaitis . The burden of negat-
ing that case "falls on Respondent as the sole custodian
of the hiring hall records . Its failure to do so creates an
adverse inference that such evidence in its possession is
not favorable to Respondent 's case." Ohio Valley, supra,
fn. 13.
CONCLUSIONS OF LAW
1. Respondent, Sheet Metal Workers' LocaL Union
No. 22 of New Jersey, is a labor oganization within the
meaning of Section 2(5) of the Act.
9 Respondent denies that Rogge is its agent As its recording secretary,
Rogge keeps the minutes of meetings ; keeps records of the names of
members and apprentices; has custody of the official seal and uses it on
all official documents, signs orders directing the payment of bills, and in
the absence of the president and vice president , calls meetings to order
and directs Respondent to select a presiding officer pro tern Based on
the above , I find that Rogge is Respondent 's agent
SHEET METAL WORKERS LOCAL 22 (MILLER SHEET METAL) 1159
2. Paul Miller Sheet Metal , Inc. is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. By imposing a court collectible fine on Richard
Zimmerman because he maintained membership in Local
28, Respondent violated Section 8(b)(1)(A) of the Act.
4. By instituting internal union charges against Bernard
Yamakaitis , and by imposing a court collectible fine on
him because he expressed support for Sheet Metal Work-
ers' International Association Local Union #28, AFL-
CIO and because he testified at a representation hearing
in Cases 22-RC-9967 and 22-RC-9970, Respondent vio-
lated Section 8(b)(1)(A) of the Act.
5. By failing and refusing to refer Bernard Yamakaitis
to employment with members of the Sheet Metal Con-
tractors' Association of Union, Morris, Somerset and
Sussex Counties, New Jersey, Respondent violated Sec-
tion 8(b)(1)(A) and (2) of the Act.
6. By engaging in the conduct set forth above in para-
graphs 4 and 5, notwithstanding that Bernard Yamakaitis
had tendered a valid resignation from Respondent, Re-
spondent violated Section 8(b)(1)(A) and (2) of the Act.
7. By refusing to give effect to the valid resignation of
full membership by Bernard Yamakaitis , Respondent has
violated Section 8(b)(1)(A) of the Act.
8. The aforesaid 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 Respondent has engaged in certain
unfair labor practices , I shall recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes of
the Act.
I shall recommend that Respondent be ordered to re-
scind the unlawfully imposed fines on Richard Zimmer-
man and Bernard Yamakaitis , expunge any reference
thereto from its files and records, and immediately notify
the two employees of such action.
Having found that Respondent unlawfully denied re-
ferrals to Bernard Yamakaitis from August 23 to Septem-
ber 14 and from October 3-20, 1988 , I shall recommend
that Respondent be ordered to make him whole for any
loss of earnings suffered as a result of the discrimination
against him by the payment to Yamakaitis of a sum of
money equal to that which he normally would have
earned as wages during those periods set forth above.
Backpay is to be computed in the manner set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), and New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).10
The Charging Party requests that I recommend that
Respondent be ordered to mail a copy of the notice to
all its members . It argues that such an extraordinary
remedy is necessary because of (a) the excessive fine
against Yamakaitis which was read to the members at a
membership meeting, (b) the fact that Respondent's wit-
ness admitted that one purpose of the fine was to send a
10 Under New Horizons, interest is computed at the "short -term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26USC § 6621.
signal to the membership , and (c) the nature of the viola-
tions which go to basic Section 7 rights.
Ordinarily, mailing of a notice is deemed to be unnec-
essary in cases, such as this, where it can be posted in a
union hall and where members attend meetings . Abiline
Area Sheet Metal Contractors, 236 NLRB 1652, 1660
(1978); Newport News Shipbuilding, 236 NLRB 1499, 1509
(1978). In addition, although members of Respondent ap-
parently make their requests for referral and receive their
referrals by telephone, there are occasions when such
members appear at the union hall . For example, Yutz
went to the hall to request a referral and check on his
status on the out of work list. Yamakaitis , during the
period when he was requesting referrals went to the hall
to have his unemployment book signed . Accordingly, it
cannot be said that members of Respondent will not re-
ceive notice of the violations by ordinary means.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edit
ORDER
The Respondent, Sheet Metal Workers' Local Union
No. 22 of New Jersey, Linden, New Jersey, its officers,
ag''its, and representatives, shall
1. Cease and desist from
(a) Imposing court collectible fines on Richard Zim-
merman because he maintained membership in Sheet
Metal Workers ' International Association Local Union
#28, AFL-CIO.
(b) Instituting internal union charges against and im-
posing court collectible fines on Bernard Yamakaitis be-
cause he expressed support for Local 28 and testified at a
representation hearing in Cases 22-RC-9967 and 22-RC-
9970.
(c) Failing and refusing to refer Bernard Yamakaitis to
employment with members of Sheet Metal Contractors'
Association of Union , Morris, Somerset , and Sussex
Counties , New Jersey, because he expressed support for
Local 28 and testified at a representation hearing, set
forth above.
(d) Engaging in the conduct set forth in subparagraphs
(b) and (c) above inasmuch as Bernard Yamakaitis has
tendered a valid resignation from Respondent.
(e) 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 the internal union charges brought against
Bernard Yamakaitis and the fines imposed on Richard
Zimmerman and Bernard Yamakaitis . Expunge and refer-
ence thereto from its files and records and immediately
notify these employees of such actions.
11 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
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Accept and give effect to the valid resignation
from full membership of Bernard Yamakaitis , and recog-
nize his financial core status.
(c) Maintain and operate its exclusive hiring hall refer-
ral system in a nondiscriminatory manner.
(d) Make whole Bernard Yamakaitis for any loss of
pay or other benefits suffered by reason of the discrimi-
nation against him in the manner set forth in the remedy
section of this decision.
(e) Preserve and, on request , make available to the
Board , or its agents for examination and copying, all
records, reports , work lists, and all other documents nec-
essary to analyze the amount of backpay due under the
terms of this recommended Order.
(f) Post at all places where notices to members or ap-
plicants for referral are posted copies of the attached
notice marked "Appendix." 1 2 Copies of the notice, on
forms provided by the Regional Director for Region 22,
after being signed by the Respondent 's authorized repre-
sentative , shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
members are customarily posted . Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered , defaced, or covered by any other materi-
al.
(g) Sign and return to the Regional Director sufficient
copies of the notice for posting by all employers utilizing
its hiring and referral hall, if willing , at all places where
notices to employees are customarily posted.
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
12 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- the United States Court of Appeals Enforcing an Order of the National
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of Labor Relations Board."