Machinists (Bolton-Emerson)

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1159 (N.L.R.B. 1984)

MACHINISTS (BOLTON-EMERSON) 1159
International Association of Machinists and Aero-
space Workers, AFL-CIO and International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, Local Lodge No. 1271 and Bolton-
Emerson, Inc. Case 1-CB-5899
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed 23 December 1983 and an
amended charge filed 23 January 1984 the General
Counsel of the National Labor Relations Board by
the Regional Director for Region 1 issued a com-
plaint and notice of hearing on 2 February 1984.
The complaint alleges that the International Asso-
ciation of Machinists and Aerospace Workers,
AFL-CIO (Respondent International), violated
Section 8(b)(1)(A) of the Act by maintaining in its
constitution article L, section 3, which restricts the
rights of members to resign during a strike or
within 14 days preceding its commencement.
The complaint further alleges that the Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, Local Lodge No. 1271 (Re-
spondent Local), violated Section 8(b)(1)(A) when
pursuant to article L, section 3 it fined four em-
ployees who after tendering resignations from
membership in Respondent Local resumed working
for the Charging Party.
On 4, 13, and 18 June 1984 the General Counsel,
the Respondents, and the Charging Party entered
into a stipulation of facts and motion to transfer
proceeding to the Board. The parties agree that the
stipulation, together with the charge, complaint,
and the answer to the complaint, constitute the
entire record in the case. The parties waived a
hearing and the issuance of a decision by an admin-
istrative law judge and submitted the case directly
to the Board for findings of facts, conclusions of
law, and issuance of an order.
On 28 September 1984, the Board issued an
order granting the motion, approving the stipula-
tion, and transferring the proceeding to the Board.
Thereafter, the parties filed briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record and the briefs, the Board
makes the following
FINDINGS OF FACT
I. JURISDICTION
The Employer is a Massachusetts corporation
engaged in the manufacture and nonretail sale and
distribution of industrial knives and related prod-
ucts. Annually, the Employer, in the course and
conduct of its operations, purchases and receives at
its Lawrence, Massachusetts facility products,
goods, and materials valued in excess of $50,000 di-
rectly from points outside the Commonwealth of
Massachusetts. Additionally, the Employer, in the
course and conduct of its operations, annually sells
and ships from its Lawrence facility products,
goods, and materials valued at over $50,000 direct-
ly to points outside the Commonwealth of Massa-
chusetts. We find that the Employer is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. We further find that
Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
Respondent Local is the recognized exclusive
collective-bargaining representative of the Charg-
ing Party's production and maintenance employees,
including drivers at the Lawrence, Massachusetts
facility. On 28 February 1983 the collective-bar-
gaining agreement covering these employees ex-
pired. Commencing on 1 March 1983 certain of the
bargaining unit employees, including Victor De-
lisle, Gilbert Olivera, Manuel Silveria, and Frank
Mack, went out on an economic strike which
lasted through 19 April 1983. On 11 April 1983,
Delisle and Olivera submitted their resignations
from membership in Respondent Local and thereaf-
ter crossed Respondent Local's picket line to
resume working for the Charging Party. On 17
April 1983 Silveria submitted his resignation from
membership in Respondent Local, and on 18 April
1983 he crossed the picket line and returned to
work. Mack tendered his resignation from member-
ship in Respondent Local on 18 April 1983. He
then crossed the picket line and resumed working
for the Charging Party.
Article L, section 3 of the constitution of Re-
spondent International provides in relevant part:
Improper Conduct of a Member:. . .
Accepting employment in any capacity in an
establishment where a strike or lockout exists
as recognized under this Constitution, without
permission. Resignation shall not relieve a
member of his obligation to refrain from ac-
cepting employment at the establishment for
the duration of the strike or lockout if the res-
ignation occurs during the period of the strike
or lockout or within 14 days preceding its
commencement. Where observance of a pri-
273 NLRB No. 143
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mary picket line is required, any resignation
tendered during the period that the picket line
is maintained, or within 14 days preceding its
establishment, shall not become effective as a
resignation during the period the picket line is
maintained, nor shall it relieve a member of his
or her obligation to observe the primary picket
line for its duration.
About 8 December 1983 Respondent Local, in
furtherance of this provision, filed charges against
employees Delisle, Olivera, Silveria, and Mack.
About 17 December 1983 Respondent Local im-
posed court-collectible fines on Delisle, Olivera,
Silveria, and Mack. The parties stipulated that Re-
spondent Local engaged in the conduct described
above because these four employees crossed a le-
gally established picket line.
B. Contentions of the Parties
Citing Engineers & Scientists Guild (Lockheed-
California), 268 NLRB 311 (1983), and Machinists
Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330
(1984), the General Counsel contends that the con-
stitutional provision restricting resignations is un-
lawful and that the mere maintenance by a union of
a constitutional provision which is unenforceable in
its restriction of the right of members to resign
during the pendency of a strike is coercive and vio-
lates Section 8(b)(1)(A). Accordingly, the General
Counsel maintains that Respondent Local and Re-
spondent International have violated Section
8(b)(1)(A) by promulgating and maintaining the re-
striction on resignation and Respondent Local has
violated Section 8(b)(1)(A) by imposing fines on
Delisle, Mack, Olivera, and Silveria for crossing
the picket line and returning to work after resign-
ing their membership in Respondent Local.
The Charging Party argues that the Respondents
violated Section 8(b)(1)(A) by imposing fines on
employees who returned to work after resigning
their union membership. The Charging Party urges
that the Board order Respondent Local to rescind
the fines and Respondent International to expunge
article L, section 3 from its constitution.
In its brief, the Union simply states:
[F]or the reasons set forth in Machinists Local
1327, 263 NLRB 984, enf. denied, Machinists
Lodge 1327, International Association of Ma-
chinists and Aerospace Workers v. NLRB
(Dalmo Victor II), 725 F.2d 1212 (9th Cir.
1984), pet. for rehg. den. (July 10, 1984), the
International Association of Machinists and
Aerospace Workers, AFL-CIO, and the Inter-
national Association of Machinists and Aero-
space Workers, AFL-CIO, Local Lodge 1271,
urge the Board to find that the Union has not
violated Section 8(b)(1)(a) [sic] of the Act, and
to dismiss the Complaint in its entirety.
C. Analysis and Findings
Unions may not, pursuant to their constitutional
provision prohibiting resignations during a strike or
within 14 days preceding its commencement, law-
fully impose fines on members who resigned and
returned to work during the course of a strike. In
urging the Board to dismiss the complaint, the Re-
spondents rely on Machinists Local 1327 (Dalmo
Victor), 263 NLRB 984 (1982). In that case the
Board found invalid the same JAM constitutional
restriction on a member's right to resign at issue
here. The plurality opinion held that a union could
lawfully restrict a member's right to resign for 30
days after the tender of the resignation. The con-
curring opinion held that any restriction imposed
on a member's right to resign is invalid.
In a subsequent case, Neufeld Porsche-Audi,
supra, the Board adopted the view of the Dalmo
Victor concurrence and overruled that case and its
progeny. For the reasons set forth in Neufeld
Porsche-Audi, we find here that by restricting mem-
bers' right to resign and by fining and filing
charges against four employees who crossed Re-
spondent Local's picket line after resigning, the Re-
spondents violated Section 8(b)(1)(A) of the Act.1
Further, in accord with Neufeld Porsche-Audi we
shall require that the Respondents cease and desist
from maintaining the restriction on resignation and
expunge the provision from their governing docu-
ments.2
CONCLUSIONS OF LAW
1. The Charging Party is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Respondents are labor organizations
within the meaning of Section 2(5) of the Act.
3. By maintaining in their governing documents
article L, section 3 prohibiting resignations during
a strike or within 14 days preceding its commence-
ment; and by filing charges and fining employees
who after submitting resignations from membership
in the International Association of Machinists and
Aerospace Workers, AFL-CIO, Local Lodge No.
1271 resumed working for the Charging Party, the
Respondents have engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) and Sec-
tion 2(6) and (7) of the Act.
' Member Zimmerman finds the violations for the reasons set forth in
his concurring opinion In Neufeld Porsche-Audi
2 See also Engineers & Scientists Guild (Lockheed-California), 268
NLRB 311 (1983)
MACHINISTS (BOLTON-EMERSON)

1161
REMEDY
Having found that the Respondents have violat-
ed Section 8(b)(1)(A) of the Act, we shall order
them to cease and desist therefrom and take certain
affirmative action designed to effectuate the pur-
poses of the Act. We shall order the Respondents
to remove from their governing documents the
portion of article L, section 3 of the constitution of
the International Association of Machinists and
Aerospace Workers set forth above, 3 rescind any
fines levied against those employees who resigned
their membership and subsequently resumed work-
ing for the Charging Party, refund any moneys
these employees may have paid as a result of the
fines imposed against them, with interest computed
in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977), and cease any prosecution of
these employees.
ORDER
The National Labor Relations Board orders that
A. Respondent International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, its of-
ficers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining in its constitution article L, sec-
tion 3 to the extent it provides:
Improper Conduct of a Member:. . .
Accepting employment in any capacity in an
establishment where a strike or lockout exists
as recognized under this Constitution, without
permission. Resignation shall not relieve a
member of his obligation to refrain from ac-
cepting employment at the establishment for
the duration of the strike or lockout if the res-
ignation occurs during the period of the strike
or lockout or within 14 days preceding its
commencement. Where observance of a pri-
mary picket line is required, any resignation
tendered during the period that the picket line
is maintained, or within 14 days preceding its
establishment, shall not become effective as a
resignation during the period the picket line is
maintained, nor shall it relieve a member of his
or her obligation to observe the primary picket
line for its duration.
3 Although the complaint in this case does not specifically allege the
maintenance of the provision by Respondent Local in its governing docu-
ments as being unlawful, the absence of such an allegation has no bearing
on the Board's discretion to fashion appropriate remedies for the viola-
tions found. Neufeld Porsche-Audi, supra. We will therefore order Re-
spondent Local to cease and desist from maintaining the provision in its
governing documents and to expunge the provision therefrom.
(b) 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 which is
designed to effectuate the purposes of the Act.
(a) Remove from its constitution the portion of
article L, section 3 set forth above.
(b) Post at its business office copies of the at-
tached notice marked "Appendix A."4 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 1, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
B. Respondent International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, Local
Lodge No. 1271, its officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Maintaining in its governing documents arti-
cle L, section 3 of the constitution of the Interna-
tional Association of Machinists and Aerospace
Workers to the extent it provides:
Improper Conduct of a Member:. . .
Accepting employment in any capacity in an
establishment where a strike or lockout exists
as recognized under this Constitution, without
permission. Resignation shall not relieve a
member of his obligation to refrain from ac-
cepting employment at the establishment for
the duration of the strike or lockout if the res-
ignation occurs during the period of the strike
or lockout or within 14 days preceding its
commencement. Where observance of a pri-
mary picket line is required, any resignation
tendered during the period that the picket line
is maintained, or within 14 days preceding its
establishment, shall not become effective as a
resignation during the period the picket line is
maintained, nor shall it relieve a member of his
or her obligation to observe the primary picket
line for its duration.
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."
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Restraining and coercing employees who
have resigned from and are no longer members of
the Respondent in the exercise of the rights guaran-
teed them by Section 7 of the Act by imposing
fines on such employees because of their postresig-
nation conduct in working at Bolton-Emerson, Inc.
during the strike which commenced on 1 March
1983.
(c) Prosecuting any former members for their
postresignation crossing of Local Lodge No. 1271's
picket line during the strike at Bolton-Emerson
which commenced on 1 March 1983.
(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 designed
to effectuate the policies of the Act.
(a) Remove from its governing documents the
portion of article L, section 3 of the constitution of
the International Association of Machinists and
Aerospace Workers set forth above.
(b) Vacate, rescind, and expunge from its records
all charges and rescind any and all fines levied
against Victor Delisle, Gilbert Olivera, Manuel Sil-
veria, and Frank Mack, who submitted resignations
of their membership in Local Lodge No. 1271
during the strike against Bolton-Emerson, Inc.,
which began on 1 March 1983 and concluded on
19 April 1983, and crossed Local Lodge No. 1271's
picket line to return to work for Bolton-Emerson,
Inc.
(c) Notify each of the above-named employees in
writing that the charges and fines have been vacat-
ed, expunged, or rescinded, and that it will take no
action to collect the fines.
(d) Refund to each of the above-named employ-
ees all moneys they may have paid to it as a result
of the fines, plus interest in accordance with the
Board's established policies.
(e) Post at its business office copies of the at-
tached notice marked "Appendix B." 5 Copies of
the notice, on forms provided by the Regional Di-
rector for Region 1, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to members are customarily posted. Reasona-
ble steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Mail to the Regional Director signed copies
of the notice for posting by Bolton-Emerson, Inc.,
if the Company is willing, in places where notices
to employees are customarily posted. Copies of the
notices, furnished by the Regional Director after
being duly signed by the Respondent's authorized
representative, shall be returned forthwith to the
Regional Director.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX A
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 maintain in our constitution arti-
cle L, section 3 to the extent it provides:
Improper Conduct of a Member:. . .
Accepting employment in any capacity in an
establishment where a strike or lockout exists
as recognized under this Constitution, without
permission. Resignation shall not relieve a
member of his obligation to refrain from ac-
cepting employment at the establishment for
the duration of the strike or lockout if the res-
ignation occurs during the period of the strike
or lockout or within 14 days preceding its
commencement. Where observance of a pri-
mary picket line is required, any resignation
tendered during the period that the picket line
is maintained, or within 14 days preceding its
establishment, shall not become effective as a
resignation during the period the picket line is
maintained, nor shall it relieve a member of his
or her obligation to observe the primary picket
line for its duration.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL remove from our constitution the por-
tion of article L, section 3 set forth above.
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORK-
ERS, AFL-CIO
5 See fn 4, supra
MACHINISTS (BOLTON-EMERSON) 1163
APPENDIX B
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 L, section 3 of the constitution of the
International Association of Machinists and Aero-
space Workers to the extent it provides:
Improper Conduct of a Member:. . .
Accepting employment in any capacity in an
establishment where a strike or lockout exists
as recognized under this Constitution, without
permission. Resignation shall not relieve a
member of his obligation to refrain from ac-
cepting employment at the establishment for
the duration of the strike or lockout if the res-
ignation occurs during the period of the strike
or lockout or within 14 days preceding its
commencement. Where observance of a pri-
mary picket line is required, any resignation
tendered during the period that the picket line
is maintained, or within 14 days preceding its
establishment, shall not become effective as a
resignation during the period the picket line is
maintained, nor shall it relieve a member of his
or her obligation to observe the primary picket
line for its duration.
WE WILL NOT restrain or coerce employees who
have resigned from the Union and who, in the ex-
ercise of the rights guaranteed them by Section 7
of the National Labor Relations Act, worked after
their resignation at Bolton-Emerson, Inc. during
the strike which began on 1 March 1983 by impos-
ing fines on them for working during the strike.
WE WILL NOT prosecute any former members
for their postresignation crossing of Local 1271's
picket line during the strike at Bolton-Emerson
which commenced on 1 March 1983.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL remove from our governing docu-
ments the portion of article L, section 3 of the con-
stitution of the International Association of Ma-
chinists and Aerospace Workers set forth above.
WE WILL rescind the fines levied against Victor
Delisle, Gilbert Olivera, Manuel Silveria, and
Frank Mack because they worked at Bolton-Emer-
son, Inc. after their resignation from the Union
during the strike which began 1 March 1983 and
refund any moneys they may have paid as a result
of such fines, plus interest, in accordance with the
policy established by the Board.
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORK-
ERS, AFL-CIO, LOCAL LODGE No.
1271