Glass, Pottery, Plastic And Allied Workers; Local Union No. 185

National Labor Relations Board - Board Decisions

Dec 12, 1984

273 N.L.R.B. 198 (N.L.R.B. 1984)

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Glass, Pottery, Plastic and Allied Workers, Local
Union No. 185, affiliated with Glass, Pottery,
Plastic and Allied Workers, AFL-CIO-CLC
(Liberty Glass Company) and Steven L.
Andrew, Attorney
Glass, Pottery, Plastic and Allied Workers, Local
Union No. 128, affiliated with Glass, Pottery,
Plastic and Allied Workers, AFL-CIO-CLC
(Liberty Glass Company) and Stephen L.
Andrew, Attorney. Cases 16-CB-2164-1, 16-
CB-2172, 16-CB-2181, 16-CB-2164-2, and
16-CB-2177
12 December 1984-
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 6 October 1983 Administrative Law Judge
William A. Gershuny issued the attaehed decision.
The Respondents and the General Counsel filed ex-
ceptions and supporting briefs.
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, for
the reason stated below, has decided to affirm the
judge's rulings, findings, and conclusions of law,
but not to adopt his recommended Order.
Recently, in Machinists Lodge 1414 (Neufeld
Porsche-Audi), 270 NLRB 1330 (1984), the Board
overruled the plurality decision in Machinists Local
1327 (Dalmo Victor), 263 NLRB 984 (1982),'
which had found that a 30-day restriction on a
union member's right to resign was reasonable, and
held, instead, in accord with the views expressed
by Member Hunter and former Chairman Van de
Water in their concurring opinion in Dalmo Victor,
that a union may not lawfully restrict the right of
its members to resign or otherwise refrain from
protected Section 7 activities for any period of
time. Applying the Neufeld Porsche-Audi standard
to the instant case, we conclude that article 26, sec-
tion 10, of the Respondents' constitution is unlaw-
ful as it imposes a restriction on a member's right
to resign by prohibiting resignations during a
strike. For this reason, we find, as did the judge,
that the fines imposed on those members who ten-
dered their resignations from the Respondents and
returned to work during the strike violated Section
8(b)(1)(A) of the Act.2
The plurality decision expressed the views of Member Zimmerman
and former Member Panning
2 Member Zimmerman agrees with the result reached by his colleagues
here, but does so for the reasons stated in the Dalmo Victor plurality deci-
We also agree with the General Counsel that the
Respondents further violated Section 8(b)(1)(A) by
threatening those employees who resigned with
fines, suspensions, expulsions, and the filing of in-
traunion charges and by threatening to fine and
blackball employee Dennis Houser after he ten-
dered his resignation from the Union and to have
' his operator's card stricken if he returned to work
during the strike. While the threats to Houser were
clearly unlawful as they occurred after he had re-
signed from the Union, we note that the threats to
blackball Houser and- to have his operator's card
stricken would have been unlawful even if he had
been a member when the threats were made be-
cause the threats, if implemented, would adversely
affect Houser's employment relationship.
REMEDY
Having found that the Respondent engaged in
unfair labor practices in violation of Section
8(b)(1)(A) of the Act, we shall order them to cease
and desist therefrom and to take certain affirmative
.action necessary to effectuate the policies of the
Act, including refunding to those persons named in
paragraph 2(b) of our Order any .money they may
have paid as a result of the fines imposed against
them, with interest computed in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962).
In addition, we shall order the Respondent to
cease and desist from maintaining the restriction on
resignations found invalid and to expunge the pro-
vision from its governing documents. Engineers &
Scientists Guild (Lockheed-Ca(fornia), 268 NLRB
311 (1983). In so doing, we note that we are not
ordering that the parent International, which is not
a party to this proceeding, expunge the offending
provision from its constitution. Rather, we are only
ordering the Respondents to expunge the provision
from their governing documents, including such
documents of the International that the Respond-
ents may have incorporated by reference and
adopted as their own.3
sion to which he continues to adhere See his dissenting opinion in Neu-
feld Porsche-Audi
- 3 While the complaint in this case specifically alleges the maintenance
of the provision as being unlawful, the absence of such an allegation
would have no bearing on the exercise by this Board of its discretion to
fashion appropriate remedies for the violations found
Member Dennis joins her colleagues in ordering the Respondents to
cease and desist from maintaining the restriction on resignations because
the complaint alleges unlawful maintenance of the constitutional provi-
sion and the record supports that allegation Compare Machinists Lodge
1414 (Neufeld Porsche-Audi), above at fn 22, in which the complaint con-
tained no such allegation As in Neufeld Porsche-Audi, however, Member
Dennis considers it impracticable to order the Respondent Local Unions
to "expunge" a provision appearing in the constitution of the parent
Continued
273 NLRB No. 30
GLASS & POTTERY WORKERS LOCAL 185 (LIBERTY GLASS) 199
ORDER'
The National Labor Relations Board orders that
the Respondents, Glass, Pottery, Plastic and Allied
Workers, Local Union No. 185, affiliated with
Glass, Pottery, Plastic and Allied Worker, AFL-
CIO-CLC and Glass, Pottery, Plastic and Allied
Workers, Local , Union No. ,128, affiliated with
Glass, Pottery, Plastic and Allied Workers, AFL-
CIO-CLC, their - officers, agents, and representa-
tives, shall
rl. Cease and desist from .
(a) Maintaining in their governing documents ar-
ticle 26, section 10, of the constitution of the Inter-
national Union, which reads as follows:
No member may resign from his local union of
the International Union during a strike. All at-
tempted resignations shall become effective
thirty (30) days from the last day of the strike.
(b) Restraining or coercing employees who have
resigned from, and are no longer members of the
Respondents in the exercise of the rights guaran-
teed them by Section 7 of the Act by imposing
court-collectible fines on the employees because of
their postresignation conduct in working at Liberty
Glass Company during the strike that began about
1 April 1983.
(c) Threatening employees who have resigned
from the Respondents with' fines, suspensions, ex-
pulsions, or the filing of intraunion charges and
threatening them with being blackballed or having
their operators' card stricken if they return to work
during a strike.
(d) 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 policies of the Act.
(a) Expunge from their governing documents ar-
ticle 26, section 10, of the International Union's
constitution as described above.
(b) Rescind the fines levied against the following
persons because of their postresignation -work for
Liberty Glass Company during the strike that
began about 1 April 1983 and refund to them any
money they may have paid as a result of the fines,
with interest:
Loc.- al Union 128

Local Union 185 •
. Earl Hankes Wandra J. Martin
• Bobby Hurt Jr. Ramona Faye Hurt
Dennis Houser Jackie Peek
James Norman Cook Ina Rice
International, which is not a party to this proceeding Instead, Member
Dennis would order the Respondents to notify 'their members in writing
that they will not enforce the restriction on resignations
Roy Matney Mary Edwards •.
Edwin McKean Leon Ashlock
Vernie Dodson - Jerry Shipman
(c) Post at their business offices and meeting
halls copies of the attached notice marked "Appen-
dix." 4 Copies of the notice, on forms provided by
the Regional Director for Region 16, after being
signed by the Respondents' authorized representa-
tives, shall be posted by the Respondents immedi-
ately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondents
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Mail to the Regional Director forthwith
signed copies of the notice for posting by Liberty
Glass Company, if the Company is willing.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondents have taken to comply.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT maintain in our governing docu-
ments article 26, section 10, of the constitution of
the International Union, which reads as follows:
No member may resign from his local union of
the International Union ,during a strike. All at-
tempted resignations shall become effective
thirty (30) days from the last day of the strike.
WE WILL NOT restrain or coerce employees who
have resigned from, and are no longer members of,
our organizations in the exercise of the rights guar-
anteed them by Section 7 of the Act by imposing
court—collectible fines on them because of their
postresignation conduct in working at Liberty
Glass Company during the strike that began about
1 April 1983.
WE WILL NOT threaten employees who have re-
signed from our organizations with fines, suspen-
Local Union 128
Earl Hankes
Bobby Hurt Jr.
Dennis Houser
James Norman Cook
Roy, Matney
Edwin McKean
Vernie Dodson
Local Union 185
•
Wandra J. Martin
Ramona Faye Hurt
Jackie Peek
Ina Rice
Mary Edwards
Leon Ashlock
Jerry Shipman
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sions, expulsion, or the filing of intraunion charges
nor will we threaten to blackball employees or
have their operators cards stricken for returning to
work during a strike.
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 article 26, section 10, of the International
Union's constitution as described above.
WE WILL rescind the fines levied against the fol-
lowing persons because of their postresignation
work for Liberty Glass Company during the strike
that began about 1 April 1983 and refund to them
any money they may have paid as a result of. the
fines, plus interest:
GLASS, POTTERY, PLASTIC AND
ALLIED WORKERS, LOCAL UNION
No. 185, AFFILIATED WITH GLASS,
POTTERY, PLASTIC AND ALLIED
WORKERS, AFL-CIO-CLC
GLASS, POTTERY, PLASTIC AND
ALLIED WORKERS, LOCAL , UNION
No. 128, AFFILIATED WITH GLASS,
POTTERY, PLASTIC AND ALLIED
WORKERS, AFL-CIO-CLC
DECISION
STATEMENT OF THE CASE
WILLIAM A. GERSHUNY, Administrative Law Judge.
A hearing was conducted in Tulsa, Oklahoma, on
August 2, 1983, on consolidated complaints alleging vio-
lations of Section 8(b)(1)(A) based on Respondents' en-
forcement of a' provision of the International ' Union's
constitution which prohibits resignation from member-
ship in local unions during a strike.
On the entire record, including my observation of wit-
ness demeanor, I hereby make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION AND LABOR ORGANIZATION
The complaints allege, the answers, as amended,
admit, and I find that Liberty Glass Co. is an employer
subject to the Act and that Respondents are labor orga-
nization within the meaning of Section 2(5) of the Act.
II. UNFAIR LABOR PRACTICES
,;The relevant facts are undisputed.
For some time prior to 1983, Local Unions 128 and
185 have been the bargaining representatives of employ-
ees at , Liberty Glass' Sapulpa, Oklahoma plant. Labor
agreements covering these employees have' made union
membership a condition of employment. At the time of
hiring, Lib-61y Glass routinely obtained employee signa-
tures on union membership applications and dues-check-
off authorizations which, by their terms, obligated em-
ployees to abide by all union rules and laws.
At all relevant times, the constitution of the Interna-
tional Union provided, in article 26, section 6, that mem-
bers crossing a picket line during an authorized strike
might be fined, suspended, or expelled from Membership
and, in article 26, section 10, that
No member may resign from his local union of the
International Union during a strike. All attempted
resignations shall become. 'effective thirty (30) days
from the last day of the strike.
All members were informed of the existence of such pro-
Visions upon their adoption in 1981; copies of the consti-
tution were posted and made available to all members;
and members were reminded of the provisions at union
meetings conducted on March 30, 1983.
At the March 30 meetings, the membership of each
local union unanimously voted to reject the Company's
final contract proposal and to engage in a strike. That
strike commenced on April 1 and was still continuing at
the time of the hearing in this case, August 2.
, During that strike, 14 members in good standing sub-
mitted their resignations in writing to their focal union:
Local Union 128

Local Union 185
- *Earl Hankes Wandra J. Martin
**Bobby Hurt, Jr. *Ramona Faye Hurt
*Dennis Houser *Jackie Peek
*James Norman Cook Ina Rice
*Roy Matney *Mary Edwards
*Edwin McKean *Leon Ashlock
*/**Vernie Dodson *Jerry Shipman
* Participated in picketing
** On layoff on March 30
Thereafter, eaCh crossed the picket line and returned to
work; was informed by the local union that, under article
26, section 10 of the constitution the resignation would
not become effective until 30 days from the last day of
the strike, was charged by the local union with a viola-
tion of article 26, section 6, which prohibits- a member
from crossing a picket line; was found guilty following a
hearing and fined $600 and $25 per day if a member of
Local Union 185 and $1000 and $25 per day if a member
of Local Union 128. At the hearing all parties, through
counsel, stipulated that there are no issues in these cases
as to the timeliness or regularity of either the employee
resignations or the aCtions of the local unions in response
to the resignations.
GLASS & POTTERY - WORKERS LOCAL 185 (LIBERTY GLASS) 201
Prior to the strike, all members were covered under a
union life insurance program, the premium for which
was $1 per month deducted from regular union dues All
members, including the 14 who are the subject of this
proceeding, continue to be covered under the program
after commencement of the strike, with the International
Union paying all such premiums. There is no evidence
that any of the 14 members have received any benefit
payments under such program since April 1, 1983
On or shortly . after April 10, when he sent his initial
resignation telegram, and again on or shortly after April
16, when he. sent a second resignation telegram, member
Houser was visited at his home by local union .officials
who first inquired whether he intended to return to work
and then informed him that he would be fined and black-
balled by the Union if he did so during pendency of the
strike.
In Machinists Local 1327 (Dalmo Victor), 263 NLRB
984 (1982), a divided Board struck down as an unlawful
restriction of a member's right, under Section 7 of the
Act, to refrain from union or other concerted activity, a
union rule prohibiting resignations during the entire
course of a strike or _within 14 days preceding its coin-
,
mencement. Members Fanning and Zimmerman, balanc-
ing the statutory right of the members and that the ,union
under the proviso to Section -8(b)(1)(A), were of the
opinion that 30 days was a reasonable restriction on such
right of resignation, while Chairman Van de Water and
Member Hunter were of the opinion that the statutory
right of a member was paramount and that any delay in
the effective date of a resignation was unlawful.
Under either view, the provision here is unlawful, for
it restricts the effective date of any resignation to the du-
ration of an authorized strike (however long) plus 30
days. Nor are there present here any extraordinary cir-
cumstances which would compel a reexamination of
Dalmo Victor, even if I had authority to do so. Participa-
tion in a unanimous strike vote or in picketing, both con-
sidered by the Board in Dalmo Victor, are commonplace
occurrences. And the action of the International Union
in paying insurance premiums of its members puts it in
the position of a volunteer and, in any event, is an irrele-
vant consideration in the issue of whether the constitu-
tional limitation on resignations conflicts with the Act.
[Recommended Order omitted from publication.]