Local 441, International Union Of Electrical, Radio & Machine Workers, Afl-Cio (Phelps Dodge Industries, Inc.)

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1008 (N.L.R.B. 1986)

1008 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
Local 441 , International Union of Electrical, Radio
& Machine Workers , AFL-CIO (Phelps Dodge
Copper Products Company, a Division of Phelps
Dodge Industries, Inc.) and Joseph Lita. Cases
22-CB-5331 and 22-CB-5354
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 11 March 1986 Administrative Law Judge
Steven B. Fish issued the attached decision. The
Respondent filed exceptions and a supporting 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 brief and has
decided to affirm the judge's rulings and findings
but to substitute conclusions and an Order consist-
ent with recent precedent.
In March 1985 Joseph Lita sent letters to the Re-
spondent (the Union) and his employer resigning
from the Union and revoking his checkoff authori-
zation. The Union refused to honor Lita's resigna-
tion request, claiming that the request was untime-
ly. In August 1985 the Union informed Lita's em-
ployer he was no longer a union member in good
standing and demanded the Employer take action
pursuant to the contractual provision requiring em-
ployees to remain members in good standing as a
condition of employment.
In Machinists Local 1414 (Neufeld Porsche Audi),
270 NLRB 1330 (1984), the Board held that a
union's attempt to restrict members' rights to resign
violated the Act. Although Neufeld factually con-
cerned members' resignations during a strike or
lockout, the Board 's holding was not limited to re-
strictions at such times . Rather, the Board held that
any restrictions on resignations were invalid. See
Sheet Metal Workers Local 73 (Safe Air), 274 NLRB
374 (1985).
Consistent with the above precedent, we hold
that the Respondent's refusal to honor Lita's resig-
nation request violated Section 8(b)(1)(A) of the
Act.' Consequently, the Respondent's attempt to
1 Although he found that the Respondent's actions with regard to Lita
violated Sec. 8(b)(1)(A) of the Act, the judge declined to apply Neufeld
because this case "was not litigated under " the Neufeld line of cases. We
note, however , that regardless of the litigation theory, Neufeld and its
progeny constituted the law at the time of the hearing, and thus applica-
tion of Neufeld to the instant case results in no prejudice to the Respond-
ent. Contrary to the judge's suggestion at fn . 18 of his decision, we find
no basis for creating an exception to Neufeld. Even assuming, however,
the collective-bargaining agreement's restrictions on resignation are
lawful, we would still find that the Respondent violated the Act based on
cause Lita's employer to discharge him violated
Section 8(b)(1)(A) and (2) of the Act.
CONCLUSIONS OF LAW
1. By refusing to honor Joseph Lita's resignation
request in March 1985, Respondent violated Sec-
tion 8(b)(1)(A) of the Act.
2. By attempting to cause Lita's employer to dis-
charge him for failure to pay periodic dues, the Re-
spondent violated Section 8(b)(1)(A) and (2) of the
Act.
REMEDY
Having found that the Respondent has violated
Section 8(b)(1)(A) and (2) of the Act, we shall
order that it cease and desist and take certain af-
firmative action necessary to effectuate the policies
of the Act. In addition, we shall order the Re-
spondent to cease and desist from maintaining and
enforcing the restrictions on resignations found in-
valid.
ORDER
The National Labor Relations Board orders that
the Respondent, Local 441, International Union of
Electrical, Radio & Machine Workers, AFL-CIO,
Elizabeth, New Jersey, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Maintaining and enforcing restrictions on em-
ployees' rights to resign.
(b) Refusing to honor Joseph Lita's March 1985
resignation request.
(c) Attempting, to cause Lita's employer to dis-
charge him for failure to pay periodic dues.
(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) Honor Lita's resignation request.
(b) Notify the Employer and Lita, in writing,
that it has done so, it rescinds any requests it has
made that Lita be discharged, and it has no objec-
tion to Lita's continued employment by the Em-
ployer.
(c) Remove from its files any reference to the
unlawful conduct and notify Lita in writing that
this has been done.
(d) Post at its business offices, hiring halls, and
meeting places, copies of the attached notice
the judge's findings that the Respondent failed to satisfy its fiduciary obli-
gations.
281 NLRB No. 137
ELECTRICAL WORKERS UE LOCAL 441 (PHELPS DODGE)
marked "Appendix."2 Copies of the notice, on
forms provided by the Regional Director for
Region 22 , after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to mem-
bers are customarily posted . Reasonable steps shall
be taken by the Respondent to ensure that the no-
tices are not altered , defaced, or covered by any
other material.
(e) Forward a sufficient number of signed copies
of the notice to the Regional Director for Region
22 for posting by the Employer at its place of busi-
ness in Elizabeth, New Jersey , in places where no-
tices to employees are customarily posted, if the
Employer is willing to do so.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
' If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
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 and enforce restrictions
on employees' rights to resign from our organiza-
tion.
WE WILL NOT refuse to honor Joseph Lita's res-
ignation from membership in our organization.
WE WILL NOT attempt to cause Phelps Dodge
Copper Products Company, a Division of Phelps
Dodge Industries, Inc. to discharge Joseph Lita for
failure to pay periodic dues.
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 honor Joseph Lita 's resignation.
WE WILL notify the Employer and Lita, in writ-
ing, that we have done so, that we rescind any re-
quest that we have made that Lita be discharged,
and that we have no objection to Lita' s continued
employment by the Employer.
1009
WE WILL remove from our files any reference to
our unlawful conduct and notify Joseph Lita in
writing we have done so.
LOCAL 441, INTERNATIONAL UNION
OF ELECTRICAL , RADIO & MACHINE
WORKERS , AFL-CIO
Mitchell A. Schley, Esq., for the General Counsel.
Everett Lewis, Esq. (Lewis, Greenwald, Kennedy & Lewis,
P.C.), of New York, New York , for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN B . FISH, Administrative Law Judge . Pursuant
to charges and amended charges filed by Joseph Lita,
the Regional Director for Region 22 issued an order con-
solidating cases and amended complaint on 11 September
1985 .1 The complaint alleges that Local 441, Internation-
al Union of Electrical , Radio & Machine Workers,
AFL-CIO (Respondent or the Union) violated Section
8(b)(1)(A) and (2) of the Act by arbitrarily and capri-
cously refusing to accept Lita's resignation from it, and
by attempting to cause Phelps Dodge Copper Products
Company, a Division of Phelps Dodge Industries, Inc.
(the Employer) to discharge Lita.
A hearing on the allegations raised by the complaint
was heard before me in Newark, New Jersey , on 17 Oc-
tober. Briefs have been received from the General Coun-
sel and Respondent and have been carefully considered.
On the entire record , including my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Employer is a corporation with an office and
place of business in Elizabeth , New Jersey (the Employ-
er's facility), where it is engaged in the manufacture of
copper wire and related products . During the past year,
the Employer purchased and received at its Elizabeth,
New Jersey facility products, goods, and materials
valued in excess of $50,000 directly from points outside
the State of New Jersey.
It is admitted and I so find that the Employer is an
employer engaged in commerce within the meaning of
Section 2(5) of the Act.
It is also admitted and I find that Respondent is a
labor organization within the meaning of Section 2(5) of
the Act.
II. FACTS
Respondent has been the collective-bargaining repre-
sentative for the Employer's production and maintenance
employees at its Elizabeth , New Jersey facility for at
least 25 years . The unit , which at one time had been as
' All dates unless otherwise indicated refer to 1985.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
high as 1200 employees, was reduced as a result of wide-
spread layoffs to 183 at the time of the instant hearing.
The Employer and Respondent have been parties to
numerous successive collective-bargaining agreements.
The agreement that was in force during the events that
gave rise to the instant matter ran from 29 April 1982 to
13 April 1985.
The contract provides in article I, paragraph 4, for a
maintenance-of-membership union-security clause that
reads as follows:
4. Effective on the date of this Agreement all em-
ployees who are members of the Union, and all em-
ployees who may during the term of this Agree-
ment become members of the Union, shall, as a con-
dition of employment remain members of the Union
in good standing for the duration of this contract
except that an employee may withdraw from the
Union at the expiration of this Agreement by giving
written notice to the parties to this Agreement by
registered mail of their intention of withdrawal
during the last 15 calendar days of this Collective
Bargaining Agreement, and in such event, Union
membership no longer remains a condition of em-
ployment. For the purpose of this Article, the term
"in good standing" shall mean the payment of
Union dues regularly as they become due and pay-
able and payment of initiation fees, if not thereto-
fore paid.
The contract also provides for a checkoff clause, au-
thorizing the Employer to deduct union dues if so au-
thorized by the employee . The last page of the agree-
ment sets forth a copy of the checkoff authorization
signed by the employees, which also provides the follow-
ing with respect to revocation of such authorization:
This authorization shall continue until revoked
and may be revoked only at the time and in the
manner provided below and shall be irrevocable for
a period of one year from the date appearing above,
or until the expiration of the agreement between the
company and the IUE-AFL-CIO (whichever is
sooner), and shall be irrevocable for each succeed-
ing year thereafter unless it is revoked by me within
the seven (7) days preceding the end of any such
period of irrevocability.
Revocation shall be effective only if I give you
and International Union of Electrical , Radio and
Machine Workers, AFL-CIO , Local 441 written
notice by individual registered mail, return receipt
requested , and it is received or postmarked during
the period specified above.2
Joseph Lita has been employed as a forklift operator
by the Employer for 20 years . For the first 5 years of his
employment Lita,was a member of Respondent . He then
resigned from the Union, which resignation was accept-
ed without difficulty.
2 The parties entered into a renewal of this contract on 5 June 1985,
retroactive to 13 April 1985 , which contains the same provisions as set
forth above.
Lita asserts that 2 years later he was told by two em-
ployees, whom he believed to be representatives of Re-
spondent,3 that if he did not rejoin the Union the other
employees would not work with him any more. There-
fore, Lita claims that he then rejoined Respondent. Re-
spondent accepted his application for readmission, and he
has been a member in good standing until the instant
events.
Lita resigned from Respondent along with another em-
ployee, Pete Ogonowski. Ogonowski never rejoined the
Union. Since 1966, when Novak became president of Re-
spondent, Lita, Ogonowski, and one other employee
have been the only employees of the Employer who
have resigned from Respondent.4
At some point in 1970, shortly after Lita and Ogon-
owski resigned from Respondent, Novak approached
Ogonowski, asked where Lita was, and threatened to
punch Lita in the mouth. Ogonowski then reported
Novak's threat to Lita, who, in the presence of Ogon-
owski, confronted Novak and said that he ' had heard
Novak wanted to punch him in the mouth. Lita chal-
lenged Novak to "go ahead, take your best shot." Novak
told Lita to get out and the incident concluded.5
On 2 April 1984 Lita sent letters to Respondent and
the Employer notifying them of his desire to resign from
Respondent and to revoke his previously executed
checkoff authorization. In May 1984, after noticing that
the Employer had continued to deduct dues from his
check, Lita went to see Ida Guerra, the Employer's per-
sonnel manager. Lita asked Guerra why dues were still
being deducted from his salary.6 Guerra informed Lita
that his requests were late. She referred him to the col-
lective-bargaining agreement, and asked him to read
paragraph 4 of article I. Lita read it, and Guerra in-
formed Lita that he had to wait until 15 days before the
expiration date of the contract to resubmit his requests.
After this conversation, Lita went to Novak and asked
why Novak was not letting him out of the Union. Novak
replied that he did not have to tell Lita anything. Lita
asked why. Novak responded, "[Y]ou and Pete Ogon-
owsky have been a thorn in my side for 15 years when
you dropped out of the Union." Novak continued that
he had no intention of letting Lita out of the Union, and
the only way Lita could get out is if Novak threw him
out. Novak told Lita to get the "hell away from me,"
and Lita then walked away.?
a The employees were Felix Infusio and Stanley Dengowski Accord-
ing to Respondent's president, Edward Novak, Infusio was a shop stew-
ard in the 1970s, and Dengowski was a member of Respondent 's execu-
tive board and a shop steward.
4 Respondent is-a local union that represents only the employees of the
Employer . Respondent's officials and officers are all full -time employees
of the Employer who receive time off to attend to grievance sessions and
other union business.
5 The above finding is based on the mutually corroborative testimony
of Lita and Ogonowski over the vague, uncertain testimony of Novak
that he had no recollection of such incident.
s Lita testified that he believed at that time that resignation and check-
off revocation were one and the same.
7 The above is based on Lita's credible testimony , once again over
Novak's equivocal failure to recollect having any conversation with Lita
about his resignation in 1984.
ELECTRICAL WORKERS UE LOCAL 441 (PHELPS DODGE)
Lita testified that he knew that the date of expiration
of the current contract was 13 April 1985, and that he
believed that his letter of resignation must be received 15
days before that date , by 30 March . Therefore, he decid-
ed to mail his requests for resignation and revocation of
checkoff on 25 March, to make sure that it reached Re-
spondent by 30 March, in the event of some problem in
the mail . He sent letters by registered mail, identical to
the letters that he had mailed in 1984 , both to Respond-
ent and the Employer requesting resignation and check-
off revocation . Respondent received its letter from Lita
on 28 March . The Employer received its letter on 26
March.
On 29 March Lita spoke to Guerra in her office con-
cerning his letter. Guerra informed Lita that his letter
was too early, and that his request for revocation of
checkoff would not be honored by the Employer.8
Lita pointed out to Guerra that she had told him in
1984 that this was the appropriate time to send in the
letter. Guerra replied that if she had advised him incor-
rectly she would agree to reimburse him for the fee for
the registered mail, but that he should resubmit his letter
in a few more days. Lita responded that he had sent it in
once, and that he should not have to do it again.
Lita insisted that he wanted to get out of the Union.
Guerra suggested that he see Novak about it.s
Lita then approached Novak, and asked why Respond-
ent was not going to honor his resignation . Novak re-
plied that he had told Lita last year and was telling him
again that his request was not going to be honored. Lita
asked why and Novak replied that Lita should "get the
hell away" from him.10
The Employer continued to checkoff dues from Lita's
salary and forward same to Respondent.
On 10 July 1985 Lita filed the charges in the instant
case, alleging a violation of Section 8(b)(1)(A) and (2) of
the Act. According to the charge filed in this case, Lita
also filed a companion CA charge, presumably against
the Employer, in Case 22-CA-13923.
Shortly thereafter, Guerra received a phone call from
the Employer's corporate attorney, advising her that be-
cause of the confusion between the recognition and
checkoff clauses he felt that Lita's request to revoke his
checkoff should be honored . Accordingly, Guerra sent a
letter to Lita, with a copy to Respondent, dated 19 July.
s Guerra admitted that she also believed that resignation from the
Union and revocation of checkoff were one and the same . In fact Guerra
testified at the instant hearing that the time limits for resignation and rev-
ocation of checkoff are both 15 days before expiration of the contract. As
noted above, she is incorrect in this assertion.
6 The above description of the conversation between Lita and Guerra
is based on a synthesis of the credited testimony of Guerra and Lita. In
most areas of conflict between their respective versions of the discussion,
I have credited Guerra , who, unlike Lita , is a disinterested witness in this
proceeding.
10 Based on the credited testimony of Lita over Novak 's version that
he simply told Lita that his request was premature, without any further
discussion . In addition to Lita 's testimony being consistent with what I
have previously found Novak to have said to Lita in 1984, I also find
Novak's version to be unlikely. Thus, if Novak had told Lita that his re-
quest was premature as Novak claimed, it seems logical to me that there
would have been further discussion about the matter rather than Lita's
merely accepting Novak 's statement without comment . Moreover, Novak
admitted that he was upset that Lita had sought to resign from the
Union.
1011
The letter advised Lita that the Employer was in error
in not honoring Lita's request to cancel his checkoff, and
that the letter was being sent to Respondent to notify it
that Lita's dues paid from April 1985 should be refunded
to him.
According to Respondent's secretary-treasurer, Walter
Kohut, on receipt of Guerra's letter, he then made a
check of Lita's records.'' Kohut states that on his in-
spection of Lita's records, he discovered that Lita had
rejoined Respondent on 1 April 1974. Therefore, his re-
quest to revoke his checkoff authorization was timely,
because it was filed 7 days before the anniversary date of
his authorization as prescribed on the last page of the
contract.
About 9 August, Charlie D'Iorio , Respondent's shop
steward, handed Lita a copy of a letter sent by Respond-
ent to the Employer. The letter, signed by Kohut and
addressed to Guerra, informed the Employer that Lita
was no longer a member of the Union in good standing.
The letter went on to say that "the Union expects your
office to take the applicable and appropriate action as
provided under Article I, paragraph 4, of the Collective
Bargaining Agreement." In the same envelope along
with this letter, Lita was given a check from Respondent
for $69, apparently as reimbursement for the 4 months'
dues improperly withheld from Lita's salary for the
months of April through July.
On receipt of the letter from Respondent, Guerra
again discussed the matter with the Employer's corpo-
rate attorney . The attorney advised her that as far as the
Employer was concerned Lita's resignation request was
effective, and that it would not terminate Lita as request-
ed by Respondent. He instructed her to so advise Re-
spondent in writing . By letter dated 21 August, Guerra
wrote to Respondent that it was the Employer's opinion
that Lita's "withdrawal from the Union, makes it unnec-
essary for us to terminate his employment under the
maintenance of membership provision of the collective
bargaining agreement."
On 28 August Kohut handed Lita a letter dated that
same day . Lita asked what it was about , and Kohut re-
plied that the letter explained itself. Kohut walked away.
The letter reads as follows:
Dear Brother Lita:
This is to confirm our previous conversation con-
cerning your current membership status in Local
441.12
While your revocation of the check -off authori-
zation was timely and effective (hence the refund of
the- dues improperly deducted), your withdrawal
11 Kohut admitted that he did not check Lita's records in March when
the original request was received. Kohut asserted Respondent was con-
cerned primarily with the resignation request at the time, and made no
effort to check on the legitimacy of Lita's checkoff revocation request.
Insofar as Lita's resignation request was concerned, Kohut testified that
he had discussed the matter with Guerra, as well as Novak, and they
each agreed that the request was untimely.
12 While this letter refers to a previous conversation between Kohut
and Lita about his membership status, Lita denies that such a conversa-
tion took place. Moreover, even Kohut admits that he had no such con-
versation with Lita prior to 28 August.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from membership in the Local was premature, and
untimely. Accordingly, you remain a member and
are responsible for paying your monthly member-
ship dues by hand.
You have failed to make your monthly dues pay-
ments for the past several months and consequently
are no longer a member in good standing of Local
441. However, you can reinstate your good stand-
ing membership by paying your dues on or before
September 13, 1985.
This is to put you on notice that should you fail
to pay your dues, the Union will have no recourse
but to so notify the Company and to insist that the
Company take the action with respect to your em-
ployment required by the terms of the collective
bargaining agreement.
Ordinarily, members on check-off must pay their
dues at the Local 441 office in Elizabeth on the
second Friday of each month. However, with re-
spect to your delinquency I will accept payment
from you directly in the plant should you prefer
that method of payment.
I urgently recommend that you give this matter
your immediate attention.
Fraternally,
Walter N. Kohut
Secretary-Treasurer
At no time prior to either of Respondent's letters of 9
or 28 August did Respondent have any communication,
orally or in writing, with Lita concerning his alleged
dues delinquency.
Apparently, Respondent has taken no further action
against Lita as set forth in its 28 August letter. Respond-
ent has not filed a grievance over the Employer's refusal
to terminate Lita as requested.
Guerra at some point after sending Respondent the
letter refusing to terminate Lita had, a brief discussion
with either Kohut or Novak. She mentioned that they
had received legal papers" and asked "why are we
going through this hassle." She suggested that Respond-
ent honor Lita's request to get out of the Union.
Either Kohut or Novak replied that the Union was
going to abide by the contract.14
III. ANALYSIS
A. Respondent's Refusal to Honor Lita's Request for
Resignation
A union violates Section 8(b)(1)(A) of the Act when it
improperly refuses to honor a resignation request submit-
ted by one of its members. Typographical Union (Register
Publishing), 270 NLRB 1386 (1984); Newspaper Guild
Local 3 (New York Times), 272 NLRB 338 (1984); Electri-
cal Workers IBEW Local 66 (Houston Lighting), 262
NLRB 483, 485 (1982).
In assessing whether such a refusal to honor a resigna-
tion request is unlawful, the Board imposes on the Union
a fiduciary obligation to notify the member of its restric-
I I Presumably referring to the NLRB charges.
14 Based on the undenied testimony of Guerra.
tions on his right to resign. Teamsters Local 610 (Brown-
ing-Ferris), 264 NLRB 886, 900-902 (1982); Teamsters
Local 36 (Stong Building), 266 NLRB 1057, 1060 (1983);
Teamsters Local 439 (Loomis Courier), 237 NLRB 220,
222 (1978).
I am persuaded that in the instant case Respondent has
fallen short of meeting its fiduciary obligations to Lita in
this regard. Respondent argues that because the provi-
sion dealing with resignation is unambiguous and includ-
ed in the collective-bargaining agreement, its obligations
in this respect are satisfied. I do not agree.
Firstly, I do not subscribe to Respondent' s assertion
that the section in the contract dealing with resignations
is clear and unambiguous. The pertinent portions permit
resignation from Respondent "at the expiration of this
Agreement by giving written notice to the parties to this
Agreement by registered mail of their intention of with-
drawal during the last 15 calendar days of this Collective
Bargaining Agreement." The provision does not mention
when the request must be received, only that notice must
be given "during" the last 15 days of the contract. It
would not be unreasonable to conclude, as Lita obvious-
ly believes, that as long as Respondent had the request,in
its possession "during" this period, such request was
proper, even though received a few days before the 15-
day period commenced. Indeed, no testimony was even
offered by Respondent that its interpretation of the pro-
vision was the correct one, nor that the issue had ever
arisen before.
Secondly, and most significantly, is Respondent's reac-
tion when it received Lita's allegedly untimely resigna-
tion requests. In 1984 when Lita made a similar request,
which was clearly a year, early, Respondent made no
effort to send it back to Lita, nor explain to him why it
was untimely or when he should resubmit it. To the con-
trary, when Lita spoke to Novak about the request,
Novak not only failed to explain to Lita the deficiencies
in his request, but informed Lita that he and Ogonowsky
had been a thorn in Novak's side for 15 years and that he
"had no intention of letting Lita out of the Union."
In 1985, when Lita attempted to resign once again, this
time allegedly 2 days early, Lita had a similar discussion
with Novak. Once more, Novak failed to explain to Lita
why his request was improper or what he could do to
rectify the situation, but merely reminded Lita that he
had told Lita last year and was telling him again that the
request was not going to be honored.
In these circumstances, by failing to give Lita appro-
priate advice so that he would have the opportunity to
comply with its requirements, Respondent has breached
its fiduciary duty to deal fairly with Lita, and is now es-
topped from asserting that his resignation was invalid.
Auto Workers Local 1384 (Ex-Cell-O Corp.), 227 NLRB
1045, 1048-1049 (1977); Browning-Ferris, supra at 901.
See also Carpenters Local 470 (Tacoma Boatbuilding),,277
NLRB 513 fn. 7 (1985).
Respondent cannot rely on Lita's conversations with
Guerra in either 1984 or 1985 to satisfy its obligations in
this regard. The fiduciary, obligation to notify Lita con-
cerning his membership obligations rests with Respond-
ent, and Respondent alone, and is not met as a result of
ELECTRICAL WORKERS UE LOCAL 441 (PHELPS DODGE)
information obtained by Lita from the Employer or from
other sources. Western Publishing Co., 263 NLRB 1110,
1112 (1982); Gloria's Manor Home for Adults, 225 NLRB
1133, 1143 (1976), enfd. 556 F.2d 558 (2d Cir. 1977);
Teamsters Local 270 (Bulk Transport), 186 NLRB 299,
301 (1970).
Moreover, scant reliance can be given to Guerra's al-
leged notification to Lita of his obligations. In 1984
Guerra merely told him that he had to wait until 15 days
prior to the expiration date of the contract to submit his
requests. Such advice is certainly not a clear indication
that a request submitted a few days prior to that date
will not be accepted. 1 5
It is true, as pointed out, by Respondent, that in 1985
Guerra did specifically inform Lita that his request was
too early. She also told Lita that the request would not
be honored by the Employer, and suggested he resubmit
the request in a few days, along with offering to reim-
burse him the fee for the registered mail. However, it
was admitted by ' Guerra that she was referring only to
Lita's request for the revocation of his checkoff, and that
she made no mention of his request' to resign. Clearly,
Guerra was confused with respect to the distinction be-
tween resignation and checkoff, and in fact furnished
Lita incorrect advice as to the appropriate time to submit
a request to revoke his checkoff authorization. 16 Ac-
cordingly, Lita's conversations with Guerra provide no
basis for Respondent's assertion that its obligations to
Lita were properly met.
Additionally, I have found that Novak told Lita in
1984 and reaffirmed same in 1985 that Lita would not be
allowed to get out of the Union unless Novak threw him
out. In these circumstances, it is clear that Respondent's
conduct would reasonably create the impression in Lita's
mind that any attempt by him to resign would be futile,
and even if he had resubmitted his request in a timely
fashion it would not have been honored. Accordingly,
Lita's failure to resubmit his resignation as suggested by
Guerra is immaterial, and Lita's request must be consid-
ered as having been submitted in a timely fashion. Ma-
chinists Local 1374 (Columbia Machine), 274 NLRB 123
fn. 1 (1985); Carpenters Local 1233 (Polk Construction),
231 NLRB 756, 761 (1977). Cf. Communications Workers
Local 9201 (Pacific Northwest Bell), 275 NLRB 1529
(1985).
Finally, the Board in Ex-Ce11-O, supra at 1049, cited
with approval language of the court of appeals in Pneu-
matic Scale17 that when a resignation is submitted pre-
maturely, "the Union might well be required to show
that it was injured by the prematurity of the resignation.
Where the resignation was unmistakably adequate apart
from this, it seems perilously close to impermissible tech-
1 s Indeed , Lita's testimony that he mailed his requests on 25 March so
that he would be sure that they were received by 30 March appears rea-
sonable and not precluded by either Guerra's remarks or reading the
clause in the contract.
is Indeed, even at the instant hearing Guerra testified incorrectly that
the 15-day limitation period appearing in art . I, sec. 4, of the contract ap-
plies to both revocation of checkoff and resignation.
17 NLRB v. Mechanical & Production Workers Local 444 (Pneumatic
Scale), 427 F.2d 883, 885 fn. 5 (1st Cir. 1970).
1013
nicality to say that a premature resignation does ' not
become effective when the proper time comes."
In the instant case, as in Ex-Cell-O, supra, Respondent
made no showing of prejudice resulting from the prema-
turity of Lita's resignation. The resignation request sub-
mitted by Lita was otherwise "unmistakably adequate"
and in Respondent's possession during the contractual
15-day period at the end of the contract.
In Ex-Cell-O the Board gave effect to 25 resignations
that were received by the Union from 3 to 10 months
before the mandated period for receipt of resignations.
Here, Lita's resignation was received only 2 days early
by Respondent, who refused to accept it knowing that
Lita had been attempting to resign for over a year. In
the instant case, as well as in Ex-Cell-O, Respondent did
not either in 1984 or 1985 return Lita's requests nor
inform him his resignations were ineffective for failure to
meet the time requirements. Therefore, Respondent's
contention that Lita's resignation did not become effec-
tive when the proper time came because it was received
2 days early, "rests on the kind of `impermissible techni-
cality' which an adjudicatory body cannot, in good con-
science, enforce." Ex-Cell-O, supra at 1049.
Accordingly, based on the above, I find that Respond-
ent has violated Section 8(b)(1)(A) of the Act by refusing
to honor Lita's resignation.18
I also conclude, in agreement with the contention of
the General Counsel, that Respondent, by Novak's state-
ment to Lita that he was not going to allow Lita to
resign just as he had told Lita the year before, has com-
mitted an independent restraint on Lita's right to refrain
from the ' exercise of concerted activity in violation of
Section 8(b)(1)(A) of the Act.
B. Respondent's Attempt to Cause the Employer to
Discharge Lita
It is undisputed that Respondent's letter to the Em-
ployer on 9 August, requesting it to take appropriate
action as provided in Article I, paragraph 4, against Lita
because he was no longer a member in good standing,
constitutes a request by Respondent for Lita's termina-
tion . Because I have found above that Respondent has
violated the Act by refusing to honor Lita's resignation
in March 1985, and therefore he had effectively resigned
as of that date, his dues obligation to Respondent termi-
18 In Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330
(1984), the Board found that a union may not lawfully restrict the right
of its members' to resign from membership and that any restrictions
placed by a union on its members' right to resign are unlawful . This posi-
tion was upheld by the Supreme Court in Pattern Makers v. NLRB, 473
U.S. 95 (1985). The Board has subsequently held that its rule prohibiting
restrictions on resignations , is not limited to restrictions on resignations
during a strike or lockout, and reaffirmed its position that any restrictions
on resignations from unions are invalid . Sheet Metal Workers Local 73
(Safe Air), 274 NLRB 374 (1985):
However, the instant trial was not litigated under this theory, and I do
not deem it appropriate to rule on whether Respondent's restrictions on
resignation were invalid on their face without affording Respondent an
opportunity to be heard on this issue . Indeed, it is possible that the Board
could create an exception to Neufeld Audi, supra, in the instant case, in
which a maintenance-of-membership clause in a collective -bargaining
agreement contains restrictions on resignation.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nated at that time as well. See Auto Workers Local 1384
(Ex-Cell-O Corp.), 219 NLRB 729 (1975).
Accordingly, Respondent's demand of the Employer
for Lita's discharge is violative of Section 8(b)(1)(A) and
(2) of the Act.
Even apart from the validity of Lita's resignation, Re-
spondent's request for Lita's discharge is unlawful for an-
other more fundamental reason. It is well settled that a
union seeking to enforce a union-security clause against
an employee has a fiduciary duty to deal fairly with that
employee. Western Publishing, `supra at 1111. The union
must inform the employee of-what his obligations are
and what action is necessary to satisfy these obligations.
Hotel Employees Local 568 (Philadelphia Sheraton), 136
NLRB 888 (1962), enfd. 320 F.2d 254, 258 (3d Cir. 1963);
Teamsters Local 595 (Certified Grocers), 257 NLRB 492,
494 (1981 ). A union is also required in this connection to
give the employee reasonable notice of the delinquency,
including a statement of the precise amount and months
for which dues are owed , as well as an explanation of
the method used in computing such amount . Western
Publishing, supra; Teamsters Local 122 (Bush & Co.), 203
NLRB 1041, 1042 (1973), enfd. 502 F.2d 1160 (1st Cir.
1974). Moreover, the union must specify when such pay-
ments are to be made and make it clear that discharge
will result from failure to pay. Distillery Workers Local 38
(Schenley Distillers), 242 NLRB 370 (1979), enfd. 642 F.
2d 185 (6th Cir. 1981). The union's fiduciary duty in this
regard is not diminished by the fact that an employee
may be generally aware of his union-security obligations
under the contract. Schenley Distillers, supra at 371; Glo-
ria's Manor, supra at 1143.
In the instant case there is no question that Respond-
ent did not make the slightest effort to fulfill its fiduciary
obligations towards Lita. It did not communicate with
him either orally or in writing with respect to this matter
prior to requesting his discharge, and made no other
effort to notify him of his alleged obligation to pay dues.
Only after the Employer rejected its request to termi-
nate Lita on 21 August did Respondent attempt to notify
Lita of his delinquency, by a letter of 28 August. How-
ever, it is clear ' that a union's fiduciary obligation to
notify an employee must be fulfilled prior to the union's
requesting his discharge, and that an after-the-fact notifi-
cation is inadequate. R. H. Macy & Co., 266 NLRB 859
(1983); Food & Commercial Workers Local 1445 , (Galla-
hue's Supermarkets), 247 NLRB 1031, 1032 (1980). More-
over, even if Respondent's letter of 28 August had been
received by Lita prior to its request for his discharge,
Respondent's fiduciary duty would still have not been
satisfied. Thus, the letter did not specify the amount of
money allegedly owed by Lita (Helmsley Spear, Inc., 275
NLRB 262 (1985)), the specific number of months over-
due, or the method used in calculating the amount due
(R. H. Macy, supra at 859).
Finally, Respondent's letter of 28 August constitutes
an independent violation of Section 8(b)(1)(A) in and of
itself because it threatens Lita that Respondent will re-
quest the Employer to terminate him. In -view of my
findings above that Lita had effectively resigned and had
no obligation to pay dues beyond March, Respondent's
actions are violative of Section 8(b)(1)(A) of the Act,
and I so find. See Ex-Cell-O, supra, 219 NLRB at 735.
CONCLUSIONS OF LAW
1. Phelps Dodge Cooper Products Company, Division
of Phelps Dodge Industries, Inc. is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Local 441, International Union of Electrical, Radio
& Machine Workers, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. By threatening to and by refusing to accept or ac-
knowledge the effectiveness of the resignation of Joseph
Lita in March 1985 , Respondent has engaged in unfair
labor practices in violation of Section 8(b)(1XA) of the
Act.
4. By threatening to cause and attempting to cause the
Employer to discharge Joseph Lita for failure to pay
periodic dues, Respondent has violated Section
8(b)(1)(A) and (2) of the Act.
5. By threatening and attempting to cause the Employ-
er to discharge Joseph Lita for failure to tender periodic
dues without adequately advising him of his obligations,
Respondent has violated Section 8 (b)(1XA) and (2) of the
Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has violated Section
8(b)(1)(A) and (2) of the Act, I shall recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes and policies of
the Act. More specifically, I shall recommend that Re-
spondent give effect to Lita's resignation, and advise the
Employer and Lita in writing that it has done so, that it
rescinds any request that Lita be discharged, and that it
has no objection to his continued employment.
[Recommended Order omitted from publication.]