International Association Of Machinists And Aerospace Workers, Afl-Cio, (General Dynamics Corp.)

National Labor Relations Board - Board Decisions

Jul 17, 1987

284 N.L.R.B. 1101 (N.L.R.B. 1987)

MACHINISTS LODGE 1233 (GENERAL DYNAMICS)

1101
International Association of Machinists and Aero-
space Workers, AFL-CIO, Aerospace Lodge
No. 1233; International Association of Machin-
ists and Aerospace Workers, AFL-CIO, Aero-
space Lodge No. 2659 (General Dynamics Cor-
poration, Pomona Division) and Clifford Donald
Blue
International Association of Machinists and Aero-
space Workers, AFL-CIO, Aerospace Lodge
No. 1233 and Rosalie E. Ulloa and Jean E.
Fereday and Shirley Barry and Carol A.
Turner. Cases 21-CB-6688, 21-CB-6699-1,
21-CB-6699-2, 21-CB-6699-3, and 21-CB-
6699-4
17 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 6 July 1979 Administrative Law Judge Ber-
nard S. Seff issued the attached decision. The Re-
spondents filed exceptions and a supporting brief.
On 25 September 1979 the Board issued an Order
Remanding Proceeding to Administrative Law
Judge, directing the judge, inter alia, to make fur-
ther factual fmdings and credibility resolutions. On
28 November 1979 the judge issued a Remand De-
cision, The Respondents filed exceptions and a sup-
porting 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, the
remand decision, and the record in light of the ex-
ceptions and briefs and has decided to affirm the
judge's rulings, findings,' and conclusions as modi-
fied but not to adopt the recommended Order.
From 18 September through 18 December 19782
the Respondent Unions engaged in an economic
strike against the Employer. During the strike, nine
employees who were members of the Respondents
resigned their memberships and returned to work.
Pursuant to charges filed against them, each of the
employees was fmed 1 day's wages for each day
they crossed the picket line and subjected to a for-
feiture of voting rights and a bar on holding union
office for 5 years. The judge found that the Re-
spondents' actions against all nine employees vio-
lated Section 8(b)(1)(A). For the reasons set forth
1 The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wail Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir._
1951), We have carefully examined the record and find no basis for re-
versing the findings.
All dates are 1978 unless otherwise noted.
below we agree that the fines imposed on employ-
ees Galop, Dannelley, Fereday, Ulloa, Barry, and
Turner violated Section 8(b)(1)(A). We also agree
that the Respondents violated the Act by imposing
certain fmes on employees Blue, Swank, and Mat-
zolf. Contrary to the judge, however, we fmd that
portions of the fines imposed on Blue, Swank, and
Matzolf were lawful.
The parties stipulated to most of the pertinent
facts. As noted, the strike began on 18 September
At that time each of the nine employees in question
was a member of one of the Respondents and
each3 initially took part in the strike. Subsequently,
each of the nine employees submitted a written res-
ignation to their respective Union and returned to
work. Blue mailed his resignation on 25 September
and returned to work the same day. His resignation
was received by the Union on 26 September.
Swank mailed his resignation on 5 October. It was
received by the Union on 7 October. He returned
to work on 6 October. Matzolf mailed his resigna-
tion 6 October and returned to work that day. His
resignation was received 7 October. The six re-
maining employees, Galop, Dannelley, Fereday,
Ulloa, Barry, and Turner also mailed their resigna-
tions. Each then returned to work either on the
day their resignation was received, 4 or on a subse-
quent day. 5 Accordingly, three employees returned
to work before their resignations were received,
two returned on the same day their resignations
were received, 6 and four returned after their resig-
nations were received.
The record further reveals that each of the
above-named employees was charged with violat-
ing article L, section 3, of the constitution of the
International Association of Machinists and Aero-
space Workers, AFL-CIO (TAM), that had been
adopted by Respondent Unions. Article L, section
3, provides, in pertinent 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
3 Employee Fereday was on vacation when the strike began, and it is
unclear whether she supported the strike at its outset.
4 Galop and Donnelley returned to work on the day their resignations
were received.
5 Fereday, Ulloa, Barry, and Turner returned to work on a day subse-
quent to the Union's receipt of their resignations.
6 Although the record is not clear, it appears that Blue, Swank, and
Matzolf (who all returned to work prior to the receipt of their resigna-
tions) may also have worked on the days their resignations were re-
ceived.
284 NLRB No. 132
1102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the duration of the strike or lockout if the res-
ignation occurs during the period of the strike
or walkout or within 14 days preceding its
commencement. Where observance of a pri-
mary picket line is required, resignation shall
not relieve a member of his obligation to ob-
serve the primary picket line for its duration if
the resignation occurs during the period that
the picket line is maintained or within 14 days
preceding its establishment.
Pursuant to charges filed against the nine em-
ployees, Respondents found that each had violated
article L, section 3. The penalty imposed for each
employee was 1 day of wages for each day the em-
ployee crossed the picket line for the duration of'
the strike, forfeiture of voting rights as a member,
and a prohibition against the employee holding
office in the JAM for a period of 5 years. At the
time of the hearing, no actions had been taken to
collect the fmes.
In the remand decision the judge found that em-
ployees Blue, Ulloa, Fereday, Barry, Turner, and
Matzolf had no knowledge of the restrictions con-
tained in article L, section 3. He also found that
Galop learned of the restrictions after the strike
began, but before he resigned, 7 while Donnelley
and Swank learned of the restrictions only after
they resigned, if at all. It is clear that none of the
employees had actual knowledge of article L, sec-
tion 3's restrictions at a time when they could have
resigned in compliance with the provision and
avoided its sanctions, i.e., prior to 14 days before
the strike began.8
In Machinists Local 1414 (Neufeld Porsche-Audi),
270 NLRB 1330 (1984), the Board held that a
union violated Section 8(b)(1)(A) by imposing a
fme on an employee who effectively resigned his
union membership and then returned to work
during a strike. In so doing, the Board ruled that a
union cannot lawfully restrict an employee's Sec-
tion 7 right to resign from a union. Accordingly,
any union-imposed restriction on an employee's
right to resign is invalid and any fines imposed on
employees who exercise their right to resign and
then return to work during a strike violate Section
8(b)(1)(A). See Pattern Makers League v. NLRB,
473 U.S. 95 (1985). If, however, an employee does
7 The judge inadvertently stated in his findings of fact that Galop
learned of the restrictions after he sent his resignation. It is clear from the
record that Galop learned of the restrictions several days before he re-
signed as is stated in the discussion section of the judge's remand deci-
sion.
8 The record does contain testimony that employees generally were
concerned about whether Respondents would take action against employ-
ees who crossed the picket line in view of similar acts which had oc-
curred in a previous strike. The generalized concern is not inconsistent
with the finding that the employees in question did not have actual notice
of the existence of art. L, sec. 3.
not effectively resign° his or her union membership
before returning to work during a strike, that em-
ployee can be lawfully fined or sanctioned by the
Union. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S.
175 (1967).
Applying those principles to the fines imposed in
the instant case, it is clear that the Respondents' ar-
ticle L, section 3, is invalid insofar as it restricts the
Respondents' members' right to resign and that the
fmes imposed against the nine employees are un-
lawful to the extent the fmes were imposed against
them for returning to work after they had effec-
tively resigned. Accordingly, the fines imposed
against Fereday, Ulloa, Barry, and Turner were
unlawful inasmuch as they returned to work after
their resignations had been received. Similarly the
fmes against Galop and Donnelley were unlawful
because their resignations were received on the
same day they returned to work, and there is no
direct evidence that their resignations were re-
ceived after they crossed the picket line. Regarding
Blue, Swank, and Matzolf, however, the record re-
veals that they returned to work before their resig-
nations were received. Thus, the fines that were
imposed against them for returning to work prior
to the Respondents' receipt of their resignations
were lawful. Any fmes imposed against them for
working on the day their resignations were re-
ceived, or thereafter, are, of course, violative of
Section 8(b)(1)(A).1°
In addition to the fines, the Respondents imposed
other sanctions on the nine employees. Thus, each
of the nine had their voting rights suspended and
each was barred from holding union office for 5
years. We find that these additional sanctions
which have not been shown to be more coercive in
nature than the suspensions at issue in our decision
in Food & Commercial Workers Local 81 (MacDon-
ald Meat), 284 NLRB 1084, which issued today, do
not violate Section 8(b)(1)(A)."
'A union resignation normally is effective on its receipt by the union.
Machinists Local 751 (Boeing Co.), 173 NLRB 450,452 (1968); Communi-
cations Workers (NJ. Bell Telephone), 106 NLRB 1322, 1324 (1953), enfd.
215 F.2d 835 (2d Cir. 1954) When a resignation is received on the same
day that the member crosses a picket line the resignation is "presumed to
have been received . . at an hour before the employee crossed the
picket line" absent direct contrary evidence. Teamsters Local 610 (Brown-
ing-Ferris), 264 NLRB 886,899-900 (1982).
'° When this proceeding was remanded to the judge the issue of
whether the nine employees had actual knowledge of art. L, sec. 3, was a
necessary threshold inquiry. See Auto Workers Local 1384 (Ex-Cell-0
Corp.), 227 NLRB 1045 (1977). Since that time the Board has ruled that
all restrictions on resignation are invalid Such a rule obviates the impor-
tance of the notice issue inasmuch as a restriction on resignation is now
invalid whether or not the employee allegedly subject to the rule knows
of it. Thus, although we adopt the judge's findings on the notice issue,
those findings are not a necessary predicate to our decision that the fines
were unlawful.
" For the reasons set forth in his partial dissent in Food & Commerical
Workers Local 81, Chairman Dotson would fmd the additional sanctions
violative of Sec. 8(bX1)(A).
MACHINISTS LODGE 1233 (GENERAL DYNAMICS) 1103
REMEDY
Having found that the Respondent violated Sec-
tion 8(b)(1)(A), we shall order that they cease and
desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act in-
cluding the refund to the fined employees of any
moneys they may have paid as a result of the fines
unlawfully imposed against them, with interest
computed in the manner prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987), and
make them whole for any loss of earnings, benefits,
travel expenses, or any other expenses incurred as a
result of their need to defend themselves against
the charges unlawfully preferred against them.
Food & Commercial Workers Local 1439 (Allied
Employers), 275 NLRB 995 (1985). Finally, we
shall order the Respondent to cease and desist from
maintaining the restrictions on resignation found in-
valid and to expunge the provision from its govern-
ing documents. Auto Workers Local 73 (McDonnell
Douglas), 282 NLRB (1986).
ORDER
The National Labor Relations Board orders that
the Respondents, International Association of Ma-
chinist and Aerospace Workers, AFL-CIO, Aero-
space Lodge No. 1233, and International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO, Aerospace Lodge No. 2659, Pomona, Califor-
nia, their officers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining or giving effect to the following
rule of the constitution of the International Asso-
ciation of Machinists and Aerospace Workers, to
the extent it defines "Improper Conduct of a
Member" as:
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 walkout or within 14 days preceding its
commencement. Where observance of a pri-
mary picket line is required, resignation shall
not relieve a member of his obligation to ob-
serve the primary picket line for its duration if
the resignation occurs during the period that
the picket line is maintained or within 14 days
preceding its establishment.
(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
fines because of the employees' postresignation
conduct in working at General Dynamics Corpora-
tion, Pomona Division, during the strike that began
on 18 September 1978.
(c) 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) Remove from their governing documents the
portion of the constitution of the International As-
sociation of Machinists and Aerospace Workers set
forth above.
(b) Rescind the fines levied against Clifford Blue,
Rosalie Ulloa, Jean Fereday, Shirley Barry, Carol
Turner, Jay Matzolf, Lee Galop, Roger Dannelley,
and Richard Swank because of their postresigna-
tion work for General Dynamics Corporation,
Pomona Division during the strike that began on
18 September 1978 and refund to them any moneys
they may have paid as a result of such fines, with
interest, and make them whole for any loss of earn-
ings, benefits, travel expenses, or any other ex-
penses incurred as a result of their need to defend
themselves against the charges unlawfully pre-
ferred against them.
(c) Remove from their records any references to
the fines imposed against the above-named employ-
ees and inform them, in writing, that such action
has been taken.
(d) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(e) Post at their offices and meeting halls copies
of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, after being signed
by the Respondent's authorized representatives,
shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees 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.
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 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."
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Sign and return to the Regional Director suf-
ficient copies of the notice for posting by General
Dynamics Corporation, Pomona Division, if will-
ing, at all places where notices to employees are
customarily posted.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting in part.
I agree with my colleagues that the fines im-
posed by the Respondents on the employees who
tendered resignations before returning to work
during the strike violated Section 8(b)(1)(A) of the
Act. Unlike my colleagues, however, I find that
the additional sanctions imposed on these employ-
ees also violated Section 8(b)(1)(A).
In addition to fining them, the Respondents also
suspended the employees' voting rights and barred
them from holding any union office for five years.
However, those added sanctions, like the fines,
were imposed in response to the employees' postre-
signation conduct. As stated in my joint dissenting
opinion in Food & Commercial Workers Local 81
(MacDonald Meat), 284 NLRB 1084, which issued
today, 1 Section 8(b)(1)(A) requires that unions
accept employee resignations and refrain from
sanctioning former members for postresignation
conduct. Thus, for the reasons stated in that dis-
senting opinion, I find that the added sanctions im-
posed on these nine employees, like the fines, vio-
late Section 8(b)(1)(A).2
1 Member Cracraft and I jointly dissented in that case.
2 It is clear that the additional sanctions were imposed for the employ-
ees' overall conduct and did not distinguish between preresignation and
postresignation acts. For this reason, the additional sanctions imposed on
employees Blue, Swank, and Matzolf, all of whom had returned to work
before their resignations had been received, also violated Sec. 8(bX1)(A).
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 maintain or give effect to the fol-
lowing rule of the constitution of the International
Association of Machinists and Aerospace Workers,
to the extent it defines "Improper Conduct of a
member" as:
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 or within
14 days preceding its commencement. Where
observance of a primary picket line is required,
resignation shall not relieve a member of his
obligation to observe the primary picket line
for its duration if the resignation occurs during
the period that the picket line is maintained or
within 14 days preceding its establishment.
WE WILL NOT restrain or coerce employees who
have resigned from, and are no longer members of,
the Unions in the exercise of the rights guaranteed
them by Section 7 of the Act by imposing fines be-
cause of the employees' postresignation conduct in
working at General Dynamics Corporation,
Pomona Division, during the strike that began on
18 September 1978.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of their
Section 7 rights.
WE WILL remove from our governing docu-
ments the portion of the constitution of the Inter-
national Association of Machinists and Aerospace
Workers set forth above.
WE WILL rescind the fines levied against Clifford
Blue, Rosalie Ulloa, Jean Fereday, Shirley Barry,
Carol Turner, Jay Matzolf, Lee Galop, Roger Dan-
nelley, and Richard Swank because of their postre-
signation work for General Dynamics Corporation,
Pomona Division, during the strike that began on
18 September 1978 and refund to them any moneys
they may have paid as a result of such fines, with
interest.
WE WILL make whole the above-named employ-
ees for any loss of earnings, benefits, travel ex-
penses, or any other expenses incurred as a result
of their need to defend themselves against the
charges unlawfully preferred against them.
WE WILL remove from their records any refer-
ences to the fines imposed against the above-named
employees and inform them, in writing, that such
action has been taken.
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORK-
ERS, AFL-CIO, AEROSPACE LODGE
No. 1233; INTERNATIONAL ASSOCIA-
TION OF MACHINISTS AND AERO-
SPACE WORKERS, AFL-CIO, AERO-
SPACE LODGE No. 2659
Frank M. Wagner, Esq., for the General Counsel.
MACHINISTS LODGE 1233 (GENERAL DYNAMICS) 1105
Robert M. Simpson, Esq (Rose, Klein & Marias), of Los
Angeles, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge. This
case came on for hearing before me in Los Angeles,
California, on March 21, 1979. It is grounded on a con-
solidated complaint which issued on December 8, 1978,
based on charges filed by several individual employees in
October 1978. The complaint, as amended at the hearing,
alleges, in effect, that during the period of an economic
strike against General Dynamics Corporation, Pomona
Division (the Employer), which lasted from September
18 through December 17, 1978, Respondents, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, Aerospace Lodge No. 1233 (Respondent
1233), and International Association of Machinists and
Aerospace Workers, AFL-CIO, Aerospace Lodge No.
2659 (Respondent 2659), engaged in certain acts of con-
duct violative of Section 8(b)(1)(A) of the Act including:
(1) preferring charges against nine employees after they
had effectively resigned their respective union member-
ship, because each had resigned from the Union during
the period of a strike and because each had crossed a
picket line and returned to work for the Employer; and
(2) on or about October 1978, Respondents, acting
through their agent, Clyde Combs, and other agents en-
gaged in various acts of restraint and coercion including
the blocking of ingress and egress and the taking of pho-
tographs of employees who were attempting to work for
the Employer during the strike.
On the entire record in this proceeding, including my
observation of the demeanor of the witnesses as they tes-
tified, and with due consideration of the briefs, I make
the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Employer is a corporation that has been engaged
in the design and production of tactical weapons systems
and military electronics equipment, chiefly for the
United States Navy, with its plant facilities located in
Pomona, California.
In the normal course of its business, the Employer an-
nually purchases and receives goods and products valued
in excess of $50,000 directly from suppliers located out-
side the State of California. I fmd the Employer is an
employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE UNIONS INVOLVED
Respondent 1233 and Respondent 2659 are labor orga-
nizations within the meaning of Section 2(5) of the Act.
Clyde Combs has been and is now a district represent-
ative of the International Association of Machinists and
Aerospace Workers, AFL-CIO, District Lodge 120, to
which both Respondents are affiliated and has been and
is now acting on behalf of both Respondents and, at all
times material, has been and is now an agent of the Re-
spondents within the meaning of Section 2(13) of the
Act.
On or about September 18 and continuing to Decem-
ber 18, 1978, Respondents have been engaged in a labor
dispute with the Employer at its facilities described
above, and during that period, directed their respective
members not to work or perform services for Employer.
At all times material the following persons have been
and are now employees of the Employer, at the Employ-
er's facilities within the meaning of Section 2(3) of the
Act:
Clifford D. Blue Jay Matzolf
Rosalie E. Ulloa Lee W. Galop,
Jean E. Fereday Roger Donnelley
Shirley Barry Richard Swank
Carol Turner
A. The Issues
1. Did Respondents violate Section 8(b)(1)(A) of the
Act by preferring charges against the nine employees
that resulted in fines and suspensions against all, except
for the few who refused service of the charges, for their
actions after effectively resigning their union membership
and returning to work for the Employer during this
strike?
2. Did Respondents, acting through Clyde Combs and
other agents, engage in acts of coercion and restraint
against employees at the picket line during the strike?
1. The picket line conduct
Sometime during the middle of October, employees
Rosalie Ulloa, Shirley Barry, and Carol Turner traveled
back and forth from work in an automobile owned by
Barry. An incident occurred on October 18 involving
Combs, the business representative of the district lodge
to which Respondents 1233 and 2659 are both affiliated.
At approximately from 4:15 to 4:20 as the employees
were leaving work in Barry's car, the car approached
the gate on Mission Boulevard to leave the premises.
Combs pointed to the car while it was in line to leave
the premises and said, "Here comes that pile of shit."
The cars in front of Barry's car were allowed to leave
the premises but the pickets, about seven or eight in
number, did not allow Barry's car to leave the gate at
once. When Barry's car was next in line to proceed
through the gate, Combs said, "It sure smells around
here," and with that the pickets began walking in front
of Barry's car very slowly. Combs walked in front of the
car from one headlight to the other for about 2 or 3 min-
utes. At the end of this period Combs said, "Let's clear
the air around here and let this pile of shit through," and
with these words the pickets all moved away thus pro-
viding a path for the car to leave the gate. It was further
testified by Ulloa that she observed Combs taking photo-
graphs of employees as they left work. On October 6 a
picture was taken of Barry's car when it was leaving the
premises driven by Barry with Carol Turner as a passen-
ger. Ulloa observed pickets taking photographs of the
employees as they left work on two or three occasions.'
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Both Barry and Turner testified essentially corroborat-
ing the same information as is set forth, supra.
The General Counsel contends that by the language
used as the three employees attempted to leave the plant,
the Respondents violated Section 8(a)(1) of the Act. In
reaching this conclusion, he cites as authority Teamsters
Local 777 (Crown Metal), 145 NLRB 197, 204 (1963).
The language of this case states:
The loud use of profanity and obscenity in the
public streets directed to an employee and to police
whose duty it is to preserve order at the scene of a
strike is, when committed in the presence of em-
ployees going to work and employees on strike, an
act of coercion in itself.
It should be noted that in Taxicab cited above, the sec-
tion quoted is only a small part of the activities being en-
gaged in by the Union which consisted of rather strong
action taken against the strikebreakers. To this extent the
facts are not opposite to the case at bar.
When language of an objectionable nature is employed
against strikebreakers during the course of the strike, it is
not to be expected that it will be couched in tearoom
style. Tempers are high, and there are few things that
excite pickets more than to see strikebreakers going
through their picket line. So far as the time element is
concerned, it appears to me that a 3-minute delay in
leaving the plant is de minitnis' . Taking these factors into
consideration, while I do not condone what occurred on
the picket line, it does not appear to me that the evi-
dence would warrant the issuance of a remedial order
based on the incidents described, supra. For this reason, I
recommend the dismissal of this allegation of the com-
plaint.
2. The internal union charges and fines
The material facts in regard to the preferring of
charges against all of the employees named in the com-
plaint and the fines and suspensions that resulted from
the convictions thereon are uncontested and, in fact,
were stipulated to by the parties at the hearing.
While the dates vary from employee to employee, es-
sentially the same course of action was taken against
each of the employees named in the complaint, and one
example would suffice to cover the incidents that oc-
curred.
Clifford Blue, a member of Respondent 2659, sent a
letter of resignation to the union by registered mail on
September 25, 1978, which was received by the Union
on September 26. Blue returned to work for the Employ-
er on September 25. Charges were preferred against him
on October 13 under the provisions of the Union's Inter-
national constitution, article L, section 3:
Accepting employment in any capacity in an estab-
lishment where a strike or lockout exists as recog-
nized under this Constitution, without permission.
Resignation shall not relieve a member of his obli-
gation to refrain from accepting employment at the
establishment for the duration of the strike or lock-
out if the resignation occurs during the period of
the strike or walkout or within 14 days preceding
its commencement. Where observance of a primary
picket line is required, resignation shall not relieve a
member of this obligation the primary picket line
for its duration if the resignation occurs during the
period that the picket line is maintained or within
14 days preceding its establishment.
The present Board law concerning the internal union
charges and fmes is succinctly set forth in The Developing
Labor Law, 1977 Supplemental, pages 13 and 14, as fol-
lows:
A. Section 8(b)(1)(A): Fines and Discipline of
Union Members
1. The Effect of Resignation on the Legality of
Discipline. In Machinists, Local 1327 (Dalmo Victor),
231 NLRB No. 115, 96 LRRJYI 1160 (1977), the
Board considered whether a union's constitutional
provision was a restriction on former members' pos-
tresignation conduct or a restriction on the resigna-
tion itself. The Board found that the facts and cir-
cumstances involved were similar to those which
existed in Local Lodge No. 1994, International Ass'n
of Machinists (0. K Tool Co.), 215 NLRB 651, 88
LRRM 1120 (1974). In that decision the Board had
concluded that a union violated Section 8(b)(1)(A)
by finding employees who returned to work during
a strike in violation of a provision in the union con-
stitution that resignation from the union did not re-
lieve a member from his duty to refrain from work-
ing at a struck establishment if the resignation oc-
curred during the strike or within 14 days preced-
ing its commencement. Finding no evidence that
distinguished the present case from 0. K Tool, nor
support for any argument that 0. K Tool was de-
cided incorrectly, the Board held that the union, by
fining former members for their postresignation
"strikebreaking," violated Section 8(b)(1)(A).
Member Jenkins dissented, stating that the real
issue before the Board was whether the union's con-
stitutional provision was a restriction on the em-
ployees' right to resign or an attempt to exercise
control over ex-members. Member Jenkins noted, as
did the majority of the Board, that the Supreme
Court has specifically left open the question of
whether a union's constitution can legally restrict an
employee's right to resign. Scofield v. NLRB, 394
U.S. 423, 70 LRRM 3105 (1969); NLRB v. Granite
State Joint Board, Textile Workers Union of America,
Local 1029, 409 U.S. 213, 81 LRRM 2853 (1972);
and Booster Lodge No. 405, International Ass'n of
Machinists v NLRB, 412 U.S. 84, 83 LRRM 2189
(1973). Member Jenkins argued that the union's
constitutional provision was, in fact, a limitation
was reasonable in that the employees "freely, know-
ingly and expressly" agreed to such limitation, had
proper notice of its existence, and the fine imposed
was limited to the strike benefitslreceived by the in-
dividuals from the union.
MACHINISTS LODGE 1233 (GENERAL DYNAMICS)

1107
In Carpenters Local 1233 (Polk Construction Co.),
231 NLRB No. 114, 96 LRRIVI 1193 (1977), a unan-
imous Board held that union fmes violated Section
8(b)(1)(A) since the union's restriction on member
resignation "prohibited all resignations at all times
for the purpose of performing non-union. . . ." The
Board agreed with the administrative law judge that
the union's restriction attempted "to impede forever
the Section 7 rights to refrain from union activity."
I am bound by Board law and consequently because
the Board majority has determined this precise issue in
the cases cited supra, I fmd that the Respondents in the
instant case have violated Section 8(b)(1)(A) of the Act.
Discussion
The General Counsel in oral argument at the conclu-
sion of the hearing, after first recapitulating the state of
the law as substantially set forth in the extensive quota-
tion from The Developing Labor Law, concluded with the
following statement:
Turning now to the application of these legal prin-
ciples to the facts of the instant proceeding, the
legal conclusion must be that Respondent's action in
initiating and processing the instant internal charges
which resulted in the fines and suspensions of mem-
bership of some of the individuals, was clearly in
violation of Section 8(b)(1)(A) of the Act.
Thus it is undisputed that all of the employees
submitted clear unequivocal written resignations
which were duly received by the appropriate local
prior to the institution of any charges. Thus all ef-
fectively resigned their respective union member-
ships prior to the institution of charges. . . . The
charge seeks to retaliate a former member for en-
gaging in Section 7 rights, the refraining from en-
gaging in concerted protected activity.. . Each of
the charges filed against the named persons in the
complaint, consisted of the fact that each ex-
member crossed the picket line when a sanctioned
strike was in progress at General Dynamics Corpo-
ration. Nothing in that first paragraph which relates
to employees crossing the picket line, referred to
whether or not the person who crossed the picket
line, was or was not an ex-member.
I agree with the General Counsel's summation of the law
and his conclusion that the Respondents violated Section
8(bX1)(A).
CONCLUSIONS OF LAW
1.General Dynamics Corporation, Pomona Division is
an employer engaged in commerce within the meaning
of the Act.
2. The Unions are labor organizations within the
meaning of the Act.
3. By suspending and fming employees for exercising
rights guaranteed to them in Section 7 of the Act, which
permits individuals to refrain from union activities, the
Respondents have violated Section 8(b)(1XA) of the Act.
4. The aforementioned unfair labor practices affect
commerce within the meaning of the Act.
THE REMEDY
Having found that Respondents engaged in certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take such af-
firmative action, including the posting of customary no-
tices as will serve the purposes of the Act.
[Recommended Order omitted from publication.]