Teamsters Local 439 (Tracy American Ready Mix)

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1232 (N.L.R.B. 1986)

1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Teamsters Local No. 439, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Tracy
American Ready Mix Co., Inc.) and Paul
McMillen. Cases 32-CB-2187 and 32-CB-2247
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 4 April 1986 Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The Respondent, the General Counsel, and the
Charging Party filed exceptions and supporting
briefs, and the Respondent and the Charging Party
filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified' as set forth below.
The judge found, and we agree, that the Re-
spondent violated Section 8(b)(1)(A) of the Act by
threatening to cause employee Paul McMillen's dis-
charge because he refused to pay a new initiation
fee after he resigned from the Union but continued
to tender periodic dues. We also agree with the
judge that the Respondent violated Section 8(b)(2)
by demanding that the Company discharge McMil-
len because he did not pay the initiation fee and,
after the Company refused to comply, filing a
grievance seeking his discharge. We disagree with
the judge, however, that the Respondent lawfully
charged, tried, and fined McMillen because he re-
turned to work during a strike before his resigna-
tion had become effective.
The relevant facts are undisputed. On 21 August
1985 the Respondent called an economic strike in
which McMillen initially participated.2 On 22
August, about midnight, McMillen left a notarized
letter of resignation in the Respondent's night letter
deposit, which the Respondent maintains for re-
ceipt of documents when its office is closed.
McMillen returned to work the next day, 23
August, about 6:50 a.m. The Respondent discov-
i The General Counsel has requested that the Order include a visita-
tonal clause authorizing the Board , for compliance purposes , to obtain
discovery from the Respondent under the Federal Rules of Civil Proce-
dure, under the supervision of the United States court of appeals enforc-
ing this Order Under the circumstances of this case, we find it unneces-
sary to include such a clause Accordingly, we deny the General Coun-
sel's request
2 All dates are in 1985
ered the resignation about 8 a.m. when its office
opened. On 2 December the Respondent filed an
internal charge against McMillen alleging that he
had violated the Respondent's constitution and
bylaws by crossing a lawful picket line before the
resignation had been received. Following a hearing
on the charge, the Respondent notified McMillen
he had been fined $500 (of which $250 was sus-
pended) and placed on probation for the duration
of the collective-bargaining agreement.3
It is settled that the Respondent was prohibited
from disciplining McMillen for conduct he engaged
in after he effectively resigned his full union mem-
bership. See Pattern Makers League v. NLRB, 473
U.S. 95 (1985). When determining whether resigna-
tions are effective for the purpose of escaping the
application of union rules, the Board follows an ef-
fective receipt rule rather than a "deposit" rule like
that used in contract law for acceptances. Team-
sters Local 538 (Passavant Health Center), 275
NLRB 730 (1985); Teamsters Local 610 (Browning-
Ferris), 264 NLRB 886, 899-900 (1982). Compare
Restatement 2d, Contracts § 63 (1981). As the judge
recognized, the determinative issue here is whether
the Respondent effectively received McMillen's
resignation when he left it in the Respondent's
night deposit box, around midnight on 22 August,
or when the Respondent, through its agents, dis-
covered it the next morning when its business
office opened, about 70 minutes after McMillen re-
ported to work. The judge correctly concluded
that our rules for determining the time of effective
receipt of resignations deposited in the regular mail
are of no assistance here.4 We disagree, however,
with his conclusion that McMillen 's resignation
was not effectively received until the Respondent's
agents retrieved it from the Respondent's night
letter deposit box.
The deposit box was maintained by the Respond-
ent for the receipt of written materials outside of
regular business hours. Materials in that box are
within the Respondent's control and can be re-
trieved at any time, even though the probability
is-as happened here-that mail will not be re-
trieved until after the office has officially opened
3 The Respondent has not attempted to collect the fine
In the case of resignations deposited in the regular mails, the Board
assumes, in the absence of contrary evidence, that the resignation is re-
ceived the day after mailing Teamsters Local 538 (Passavant Health
Center), 275 NLRB 730, Teamsters Local 610 (Browning-Ferris), 264
NLRB 899-900 When an employee returns to work on the same day
that the resignation is deemed to be received, it is presumed, in the ab-
sence of contrary evidence , that the resignation was received an hour
before the employee crossed the picket line Id Here there is evidence
hearing on receipt , so the presumption cannot apply, even assuming we
were to follow our regular-mail rules Thus, we are left with the ques-
tion, addressed above, of what action effected a receipt by the Respond-
ent
281 NLRB No. 164
TEAMSTERS LOCAL 439 (TRACY` AMERICAN READY MIX) 1233
for the day. Although -we are not bound by
common law contract rules, we find a useful analo-
gy in the common law rule applicable to the effec-
tive date of revocations deposited in a place desig-
nated by the person addressed as a place for the
deposit of that "or similar communications." Re-
statement 2d, Contracts § 68 (1981). Under that
rule, a revocation is deemed received when it is de-
posited in the designated place. We need not reach
the question whether the Respondent could lawful-
ly have excluded resignations from the class of
communications that could, be deposited in that
box. The evidence indicates that no such restric-
tions existed. Thus, having placed his resignation in
the Respondent's possession by depositing it in the
box designated for after-business-hours deliveries
before he abandoned the strike and returned to
work, McMillen was not lawfully subject to disci-
pline for that return, to work. Accordingly, the Re-
spondent violated Section 8(b)(1)(A) of the Act by
preferring internal charges against McMillen and
fining him for postresignation conduct.
AMENDED CONCLUSIONS OF LAW
Add the following as Conclusion of Law 3.
"3. The Respondent violated Section 8(b)(1)(A)
of the Act by processing internal charges and im-
posing a fine against employee Paul McMillen for
conduct occurring after he resigned his full union
membership."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, General Teamsters Local No. 439, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Stockton,
California, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Threatening to cause the discharge of any
employee for failing to pay a new initiation fee
when that employee has resigned his union mem-
bership during the course of a strike and has con-
tinued to tender his dues.
(b) Attempting to cause Tracy American Ready
Mix Co., Inc. to discharge any employee because
that employee fails to pay such a new initiation fee.
(c) Filing a grievance to require the Company to
discharge any employee for failing to pay such a
new initiation fee.
(d) Processing internal charges and imposing a
fine against any employee for conduct occurring
after the employee resigns full union membership.
(e) 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) Notify Tracy American Ready Mix Co., Inc.,
in writing, that its request that Paul McMillen be
discharged is withdrawn and send a copy of that
notice to Paul McMillen.
(b) Withdraw the grievance it filed relating to its
demand that Paul McMillen be discharged and
send a copy of that withdrawal to the Company
and to Paul McMillen.
(c) Rescind the charges and the fine imposed on
employee Paul McMillen for conduct occurring
after he resigned his full union membership.
(d) Remove from its files, and ask the Company
to remove from the Company's files, any reference
to the unlawful charges and fine and notify ' Paul
McMillen in writing that it has done so and that it
will not use the unlawful charges and fine against
him in any way.
(e) Post at its business offices, hiring halls, and
meeting places copies of the attached notice
marked "Appendix."5 Copies of the notice, on
forms provided by the Regional Director for
Region 32, after being signed by its authorized rep-
resentative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 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 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 threaten to cause the discharge of
any employee for failing to pay a new initiation fee
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when that employee has resigned his union mem-
bership during the course of a strike-and has con-
tinued to tender his dues.
WE WILL NOT attempt to cause Tracy American
Ready Mix Co., Inc. to discharge any employee
because that employee fails to pay such a new initi-
ation fee.
WE WILL NOT file a grievance to require the
Company to discharge any employee for failing to
pay such a new initiation fee.
WE WILL NOT process internal union charges
and impose fines against employees for conduct oc-
curring after they resign full union membership.
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 notify Tracy American Ready Mix
Co., Inc., in writing, that our request that Paul
McMillen be discharged is withdrawn and WE
WILL send a copy of that notice to Paul McMillen.
WE WILL withdraw the grievance we filed relat-
ing to our demand that Paul McMillen be dis-
charged and WE WILL send a copy of that with-
drawal to the Company and to Paul McMillen.
WE WILL rescind all charges and the fine im-
posed on employee Paul McMillen for conduct oc-
curring after he resigned his full union member-
ship.
WE WILL notify Paul McMillen that we have re-
moved from our files, and have asked the Compa-
ny to remove from the Company's files, any refer-
ence to the unlawful charges and fine and that we
will not use them against him in any way.
GENERAL TEAMSTERS LOCAL No.
439, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS , CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMER-
ICA
Luella E. Nelson, Esq., for the General Counsel.
David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco , California , for the Union.
Karen E. Ford, Esq. (Littler, Mendelson , Fastiff & Tichy),
of San Francisco , California , for the Charging Party.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
This case was tried in Oakland, California, on February
12, 1986. The charges in Cases 32-CB-2187 and 32-CB-
2247 were filed respectively on October 24, 1985, and
January 6, 1986, by Paul McMillen, an individual. A
complaint issued in Case 32-CB-2187 on December 17,
1985 . An order consolidating Cases 32-CB-2187 and 32-
CB-2247 together with a consolidated amended com-
plaint issued on January 29, 1986 The consolidated com-
plaint, which was further amended at the hearing, alleges
that General Teamsters Local No. 439, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (the Union) violated Section
8(b)(1)(A) and (2) of the National Labor Relations Act.
Issues
The primary issues are:
1. Whether the Union unlawfully charged, tried, and
fined Paul McMillen because McMillen worked during a
strike, under circumstances in which McMillen had re-
signed from the Union before returning to work. That
issue turns in large part on whether McMillen 's resigna-
tion was effective when he deposited it in a night box at
the union office or when the union office opened the fol-
lowing morning.
2. Whether the Union violated the Act by threatening
to cause McMillen's discharge unless he paid a new initi-
ation fee at the conclusion of a strike, by attempting to
cause the Company to discharge McMillen under a
union-security clause for failure to pay such a fee, and by
filing a grievance to require the Company to discharge
McMillen.
All parties were given full opportunity to participate
to introduce evidence, to examine and cross-examine wit-
nesses , to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of
the General Counsel, the Union, and the Charging Party.
On the entire record' of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. JURISDICTION
Tracy American Ready Mix Co., Inc. (the Company),
a California corporation with an office and place of busi-
ness in Tracy, California, is engaged in the manufacture
and nonretail sale of ready-mix concrete. During the
year immediately preceding issuance of complaint the
Company sold goods valued in excess of $50,000 to the
United States Government and to the State of California,
entities over which the Board would have jurisdiction on
a direct inflow basis but for their exempt status. The
complaint alleges, the answer admits, and I find that the
Company is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
There is little dispute about the facts. Except as is oth-
erwise indicated, the findings set forth below are based
I The transcript of the proceedings is of extremely poor quality and is
replete with errors The unopposed motion of the General Counsel to
correct the transcript is granted That motion is annexed to the G C
Exh as No 4 Though there are many other errors in the transcript, in
the absence of a motion from the Union or the Charging Party, no fur-
ther action will be taken to correct the record
TEAMSTERS LOCAL 439 (TRACY AMERICAN READY MIX) 1235
on admissions , stipulations of the parties, and the uncon-
tested testimony of witnesses.
The Company and the _ Union have had a collective-
bargaining relationship for many years. Paul McMillen is
one of the employees in the bargaining unit . The parties
reached agreement on . their current contract about
August 30, 1985, and it is effective by its terms from July
1; 1985 through July 1, 1988 . That contract as well as its
predecessor agreements contains a union-security clause.2
The preceding contract expired by its terms on July 1,
1985 . On August 30, 1985, the Union went out on an
economic strike. McMillen participated in that strike. He
was a a union member who had paid his initiation _fee
and was current in his dues. He continued to participate
in the strike until 6 :50 a.m . on August 23, 1985 , when he
returned to work. At that time the strike was still in
progress.
About midnight on August 23, 1985, which was about
7 hours before he returned to work, ,McMillen deposited
a resignation letter in the Union 's night letter deposit at
the union office located at 1531 East Fremont Street,
Stockon, California . The letter read:
August 23, 1985
To Whom It May Concern:
General Teamsters Local #439;
Effective 'this date , August 23, 1985. I resign my
membership in the General Teamsters Local #439.
/s/ Paul A. McMillen
567-60-8492
The letter was subscribed and sworn to before a notary
public.
The night letter deposit at the union office is used by
people desiring to drop off material for the Union during
hours when the union office is closed . The Union's
normal business hours are 8 a.m. to 5 p.m. Monday
through Friday. McMillen knew that the union office
was not open at night. The Union did not learn that
McMillen had resigned until about 8 a,m. on August 23,
1985, when the office opened. That was about an hour
and 10 minutes after McMillen had returned to work2
2 The clause reads.
Only members in good standing in the Union shall be retained in em-
ployment . For the purposes of this Section , "members in good stand-
mg" shall be defined , to mean employee members in the Umon who
tender the periodic dues and initiation fees uniformly required as a
condition of acquiring or retaining membership Non-members of the
Union hired by the Employer must complete membership affiliation
on or immediately following the thirtieth day of employment, and
the Union agrees to accept said non-members into membership on
the same terms and conditions generally applicable to other mem-
bers Upon written notice from the Union of failure on the part of
any individual to complete membership in the Umon as above re-
quired, or of failure to continue payment of dues to the Union, the
Employer shall , within- seven (7) days of such notice, discharge said
employee.
3 McMillen testified that there were no pickets present when he re-
turned to work at 6 : 50 a.m on August 23. Pat Miraglio, the Union's busi-
ness representative , testified that between 6 and 7 a in . on August 23 he
received a telephone call from one of the pickets at the Company who
told him that McMillen was inside the plant. He also averred that he
drove to the plant and saw McMillen's pickup truck parked there.
McMillen may not have observed any pickets at 6:50 a .m., but I credit
McMillen did not tell any union official that he intended
to resign before placing the resignation in the night drop.
About 8 a.m. or 8 : 15 a.m . when Union Business Repre-
sentative Pat Miraglio went to the union office he was
shown McMillen 's resignation, which his secretary had
found in the night box . That was the first knowledge he
had of the resignation.
On August 30, 1985, McMillen mailed the Union a
check for $26 in payment of the Union's established dues
for September 1985 . The Union received the check on
September 3, 1985 , and issued him a receipt . On Septem-
ber 24, 1985 ,, McMillen mailed the Union a check for the
same amount in payment of the dues for October 1985.
The Union received the check on September 25. On the
same day Union Business Agent Miraglio telephoned
McMillen and asked him what the checks were for.
McMillen said that they were for dues. Miraglio replied
that he could not accept dues because McMillen was not
a member . McMillen said that he had sent the checks be-
cause he had been told that he could do so and continue
working . Miraglio replied that that might be acceptable
someplace but not at this Union and that McMillen
would have to pay another initiation fee - or the Union
would seek his termination. The same day , the Union
mailed a $26 check to McMillen as a refund for the dues
he had paid for September 1985 and returned McMillen's
uncasheci check for $26, which had been in payment for
the dues for October 1985. The letter stated "Enclosed is
the $52 .00 you mailed to us. You sent in a resignation
that became effective August 23 , 1985. Under the Union
Security clause you have 31 days to pay initiation fees of
$150 plus September dues of $26.00"
Thereafter, McMillen sent `$27, in checks for payment
of the Union's then ' established dues ' for November and
December 1985 , and January 1986 . Each of the checks
was returned uncashed to him ,4 with a letter saying, in
effect, that the Union could not accept dues from a non-
member . Union Secretary-Treasurer Dominic Garcia tes-
tified that the Union has never accepted dues from
anyone who is not a member and has also never accept-
ed dues from an individual who had not paid an initi-
ation or a reinitiation fee. He credibly averred that two'
union members had previously resigned during a strike
and that both had come back to the Union and paid a
reinitiation fee and dues. He testified that he was un-
aware of any exception to a union policy requiring an
initiation or reinitiation fee. He further averred that he
was unaware of anyone who tried to obtain financial
core status in the Union.
On October 22, 1985 , the Union mailed a letter to
McMillen, which stated: '
We have previously returned the $52 .00 which
you mailed us. The money cannot be accepted with-
out the payment of an initiation fee since your resig-
Miragliq'a assertion that he learned that McMillen had gone to work
about that time.
4 The complaint alleges, the answer admits, and I find that at all times
material herein after August 23 , 1985, McMillen tendered to the -Umon
the monthly membership dues.
1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation became effective the time received, on
August 23, 1985.
Please be advised that thirty (30) days have now
elapsed since that contract as executed and under
the Union Security clause, you must meet your fi-
nancial obligations with the Union. Unless you pay
the amount of $150 as an initiation fee and $27 dues
for October on or before October 31, 1985 we will
ask that your employer terminate you.
On November 11, 1985, the Union mailed a document
entitled "Termination Notice" to the Company with a
copy to McMillen. The document set forth the amount
of dues and initiation fees allegedly owned by McMillen.
It read, in part:
According to the Union Agreement in effect be-
tween the Company and the Union, any employee
covered by said Agreement cannot be retained in
employment unless he is a member in good stand-
ing. This will serve as official notice to terminate
Paul McMillen, SS# 567-60-8492 on November 18,
1985 unless otherwise notified by this office.
By letter dated November 21, 1985, the Company de-
clined to honor the termination notice. The letter stated
that it was the Company's understanding that McMillen
resigned his membership during the strike but McMillen
continued to tender dues each month and that the Union
refused to accept those dues. The letter went on to state
that there was no lawful basis for terminating McMillen's
employment, that McMillen had filed charges with the
NLRB, and that if the Company complied with the
Union's demand for discharge, the Company might be
held jointly responsible for a violation of law.
By letter dated November 22, 1985, the Union advised
the Company that it was filing a grievance over the
Company's refusal to discharge McMillen. A copy of the
grievance was enclosed. The relief sought in the griev-
ance included back wages to be paid a designated
member from the Union's out-of-work list. On December
6, 1985, the Union requested that its grievance be taken
to a board of adjustment. As of the time of trial no fur-
ther action was taken concerning the Union's grievance.
On December 2, 1985, Union Business Representative
Miraglio filed an internal union charge against McMillen,
alleging that McMillen violated the union bylaws and the
International constitution by crossing a lawfully sanc-
tioned picket line of the Union on August 23, 1985. The
charge states in part that it is being brought under article
XIX, section 6(7) of the International constitution, which
prohibits a member from working during a strike. That
section states in part:
Resignation shall not relieve a member of his obli-
gation to refrain from continuing to work or accept-
ing employment at an establishment for the duration
of a strike or lockout at such establishment or
within fourteen (14) days preceding the commence-
ment of the strike or lockout. 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 resig-
nation occurs during the period that the picket line
is maintained or within fourteen (14) days before its
establishment.
However, the Union concedes that that limitation on the
right of an employee who has resigned from the Union
to cross a picket line is ineffectual and it does not raise
that limitation as a defense. The Union conceded on the
record that McMillen's resignation was effective at the
time it was received. The Union's contention is that it
was received when the union office opened at 8 a.m. on
August 23 and not when it was placed in the night drop
during the night when the office was closed. There is no
contention in the complaint that the resignation limita-
tion provision in the constitution was unlawful and the
General Counsel does not urge such a finding. For the
purposes of this case it is sufficient to note that that
clause in the constitution was inoperative.
On December 26, 1985, McMillen was notified in writ-
ing that a charge had been filed against him and that
there would be a hearing on the charge on January 8,
1986.
By letter dated January 3, 1986, Karen Ford notified
the Union that she had been retained to represent
McMillen, that the Union's actions against McMillen
were unlawful, that the NLRB had already issued a com-
plaint against the Union, and that she had filed an addi-
tional charge.
On January 8, 1986, the Union conducted a hearing
before its executive board on the charge that had been
filed against McMillen. McMillen did not attend the
hearing.
On January 29, 1986, David Rosenfeld, the Union's at-
torney, responded to Karen Ford's letter of January 3,
1986, in a letter that stated the Union had no knowledge
of McMillen's resignation until 8:30 on August 23 and
that the resignation was deemed effective as of that time.
On January 31, 1986, the Union issued a decision on
the internal union charge against McMillen. The deci-
sion, which was set forth in a letter to McMillen, stated
that "evidence was presented which established that you
crossed the picket line before the Union received your
resignation." The letter went on the state:
You are hereby fined $500.00 of which $250.00 be
suspended, leaving a balance of $250.00 to be paid by
2/17/86-5.•00 p.m. and that you be placed on pro-
bation for the duration of the contract, due to your
conduct arising before the resignation was received.
As of the date of the trial in the instant case, McMillen
had not paid the fine and the Union had taken no further
action to collect it.
B. Analysis and Conclusions
1. The internal union charge, the hearing, and the fine
against McMillen
Section 7 of the Act provides that employees shall
have the right both to engage in and to refrain from en-
gaging in concerted activities. McMillen's return to work
TEAMSTERS LOCAL 439 (TRACY AMERICAN READY MIX)
during the course of the strike was a protected activity
under Section 7 of the Act. However Section 8(b)(1)(A)
of the Act, which makes it an unfair labor practice for a
union to restrain or coerce employees in the exercise of
the rights guaranteed in Section 7, has a proviso that
states "That this paragraph shall not Impair the right of a
labor organization to prescribe its own rules with respect
to the acquisition or retention of membership therein." In
interpreting the Act the United States .Supreme Court
has established, some general guidelines . The starting
point is that a union may discipline a member for work-
ing during a lawful strike . In NLRB v. Allis-Chalmers
Mfg. Co., 388 U.S. 175, 181-182 (1967), the Supreme
Court discussed the proviso to Section 8(b)(1)(A) and
held:
Integral 'to-this federal labor policy has been the
power in the chosen union to protect against ero-
sion its status under that policy through reasonable
discipline of members who violate rules and regula-
tions governing membership . That power is particu-
larly-vital when the members engage in strikes. The
economic strike against the employer is the ultimate
weapon in labor's arsenal for achieving agreement
upon its terms, and "[t]he power to fine or-expel
strikebreakers is essential if the union is to be an ef-
fective bargaining , agent . ^ . ." Provisions in union
constitutions and bylaws for fines and expulsion of
recalcitrants, including strikebreakers, are therefore
commonplace and were commonplace at the time of
the Taft-Hartley amendments.
In addition , the judicial view current at the time
§ 8(b)(1)(A) was passed was that provisions defining
punishable conduct and the procedures for trial and
appeal constituted part of the contract between
member and union and that "The courts' role is but
to enforce the contract." In Machinists v. Gonzales,
356 U.S. 617, 618, we recognized "[t]his contractual
conception of the relation between a member and
his union ,widely prevails in this country. ..."
[Footnotes omitted.]
In Scofield v. NLRB, ' 394 U.S. 423, 430 (1969), the high
court held that a union member could insulate himself
from union discipline by resigning from the union. The
court held:
§ 8(b)(1) leaves a union free to enforce a properly
adopted rule which reflect a legitimate union inter-
est, impairs no policy Congress has imbedded in the
labor laws, and is reasonably enforced against union
members who are free to leave the union and
escape the rule.
In NLRB v. Textile Workers Local 1029 (Granite State
Joint Board), 409 U.S. 213, 215 (1972), the Court held
that a union did violate Section 8(b)(1) of the Act when
it fined- employees who first resigned from the union and
then worked during a strike . The Court distinguished the
case from Allis-Chalmers, supra, by stating that in that
case the employees who were disciplined "enjoyed full
union membership ." The Court held that "when a
member lawfully resigns from the union, its power over
1237
him ends."5 In Machinists v. NLRB, 412 U.S. 84 (1973),
the Supreme Court held that a union violated the Act by
seeking court enforcement of fines that had been im-
posed on resigned -members for strikebreaking activity.
Finally, in Pattern Makers League v. NLRB, 473 U.S. 95
(1985), the Supreme Court held that a labor organiza-
tion's constitution and bylaws could not effectively limit
a member's right to resign and that Section 8 (bXl)(A)
prohibited the imposition of fines on employees who ten-
dered resignations before , working during a strike, even
though the union's constitution stated that such resigna-
tions were invalid.6
Paragraph 10 of the complaint alleges that the Union
filed internal union charges against McMillen, that the
Union notified McMillen about those charges, that, the
Union conducted a hearing on the charges , and that the
Union fined him. As found above, the Union did all of
those things . Paragraph 12 of the complaint alleges that
the Union took those actions "for conduct in which
McMillen engaged subsequent to his resignation from full
Union membership and because of his failure to pay a
`re-initiation' fee when he was under no obligation to do
so, and/or because McMillen resigned from his member-
ship in Respondent and refused to participate in the
strike , and/or in retaliation for McMillen's filing an
unfair labor , practice charge against Respondent." The
real question in , issue is whether the internal union
charge, trial , and fine were keyed to actions of McMillen
before or after his resignation became effective . The in-
ternal union charges were filed after McMillen refused to
pay a new initiation fee and after the charge in Case 32-
CB-2187 was filed. However, other than any inference
that might be warranted from that chronological se-
quence , there is no evidence on which to base a finding
that the failure to pay the fee or the filing of the unfair
labor practice charge was causally connected to the
Union's actions regarding the internal union charge,
hearing, or find . The chronological sequence standing
alone is insufficient to support those alternative theories.
The same is true regarding the "and /or"' theory that the
Union took , such action because McMillen resigned his
membership and refused to participate in the strike.
There is no evidence that the Union's actions regarding
the fine and related matters were motivated by McMil-
len's resignation. The internal union charge alleges
McMillen worked through a picket '"line during a strike
on August 23, 1985, and makes mention of no date after ,
that time. The decision on the internal union , charge
states that McMillen was fined for going to work during,
the strike before - the Union received his resignation.'
As the court held in the Granite State case (409 U.S. at 217):'
The Scofield case indicates that the power of the union over the
member is certainly no greater than the union -member is contract.
Where a member lawfully resigns from a union and thereafter en-
gages in conduct which the union rules proscribes , the union com-
mits an unfair labor practice when it seeks enforcement of fines for
that conduct. That is to say, when there is a lawful dissolution of a
union-member relation, the union has no more control over the
former member than it has over the man in the street
6 See also Machinists Local 1414 (Neufeld Porsche Audi), 270 NLRB
1330 (1984); Bricklayers Local 17 (California Tile), 271 NLRB 1571
(1984).
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McMillen placed his resignation in the Union's night box
about midnight on August 23, 1985. He went back to
work about 6:50 a.m. on August 23 while the strike was
in progress. The union office did not open until 8 a.m. on
August 23 and the Union had no knowledge of the resig-
nation until the office opened and the resignation was
taken out of the night box. If as alleged by the Union the
resignation was effective at 8 a.m. on August 23, then
McMillen would have worked for a little over an hour
during the strike while he was still a member of the
Union and he would have been subject to union disci-
pline for his conduct while he was such a member. As
indicated above, the evidence establishes that the Union
took the action it did against McMillen because he
worked during the strike for that 1-hour period. The
General Counsel has not established its alternative theo-
ries. If, on the other hand, McMillen's resignation was
effective when he delivered it to the union office night
box, then he was not a union member subject to disci-
pline at 6:50 a.m. on August 23 when he returned to
work, and the Union's discipline of him was a violation
of the Act.
A union member's desire to resign is not self-effectuat-
ing. A resignation is effective only when the desire to
resign is. clearly communicated to the union. Machinists
Local 2045 (Eagle Signal), 268 NLRB 635, 637 (1984).'
If a member's resignation is posted by mail, the Board
will presume delivery of the mail in due course. Carpen-
ters Local 470 (Tacoma Boatbuilding), 277 NLRB 513,
516 (1985), a Here, the resignation was hand-delivered so
there is no need to draw inference that would be appro-
priate for a mail delivery. However, that does not re-
solve the question whether the type of delivery present
in this case constituted an effective communication of the
intent to resign at the time the resignation was left in the
night drop.
In Teamsters Local 610 (Browning-Ferris Industries), 264
NLRB 886, 899 (1982), union members submitted resig-
nations in writing to pickets and picket captains. It was
held that resignations were not effective becaue neither
the pickets nor the picket captains had authority with
regard to such resignations. In effect there was no com-
munication of the resignation to a responsible official of
the union.
In the instant case, the union office was only open
during normal business hours. It did not open on August
23, 1985, until after McMillen had returned to work. In a
sense the Union may have "received" the resignation,
which was in its night drop, even when the office was
closed. It may have been in the physical possession of
the Union by the mere fact that it was in the union night
drop. However, I do not believe there is any reasonable
basis for finding that there was a "communication" of
McMillen's intent to resign until the office opened and
the resignation could have been seen. Until the office
opened, there was no actual notice, and there is no basis
' See also Bricklayers Local 17 (California Tile), 271 NLRB 1571, 1577
(1984), Electrical Workers IBEW Local 66 (Houston Lighting), 262 NLRB
483, 486 (1982)
8 See also Electrical Workers IBEW Local 340 (Hulse Electric), 273
NLRB 428 (1984), Hendricks-Miller Typograhic Co, 240 NLRB 1082,
1088 (1979)
for inferring a constructive notice (as there might have
been if the Union closed during normal business hours so
as to avoid receiving communications).
As I have found that McMillen did not effectively
communicate his desire to resign until after he returned
to work during the strike , it follows that he was still a
full union member when he resumed work . As such he
was subject to union discipline for his actions while he
was such a member . As the internal union charge, the
hearing , and the fine against McMillen were based on
that conduct by McMillen , I recommend that paragraph
10 of the complaint be dismissed.
2. The threat to cause McMillen 's discharge unless he
paid a new initiation fee, the demand that the
Company discharge McMillen, and the grievance
relating to the Company 's failure to discharge him
As alleged in paragraph 9 of the complaint, and as
found above , the Union told McMillen both orally and in
writing that it would seek his termination unless he paid
a new initiation fee; the Union made a written request of
the Company to terminate McMillen for nonpayment of
that initiation fee; and the Union filed a grievance over
the Company 's refusal to discharge McMillen . Those ac-
tions by the Union would constitute clear violations of
Section 8(b)(1)(A) or (2) of the Act" unless the Union's
demand that McMillen pay a new initiation fee was
properly made pursuant to a lawful union-security
clause. 110
McMillen initially paid his initiation fee and at all
times material herein he has tendered union dues. The
pivotal question is whether the Union could lawfully re-
quire a new initiation fee pursuant to its union-security
clause after McMillen resigned from the Union.
Under the proviso to Section 8 (a)(3) of the Act "mem-
bership" may be required as a condition of employment
after the 30th day of employment . However , the term
"membership" has been narrowly defined by both the
Board and the courts . In Union Starch , 87 NLRB 779
(1949), enfd . 186 F.2d 1008 (7th Cir. 1951), the Board
held that full membership could not be required under a
union-security clause and that employment could only be
conditioned on a tender of initiation fees and dues. The
United States Supreme Court came to the same conclu-
sion in NLRB v. General Motors, 373 U.S. 734, 742
(1963), in which the high court held:
It is permissible to condition employment upon
membership , but membership, insofar as it has sig-
nificance to employment rights, any in turn be con-
ditioned only upon payment of fees and dues.
8 Sec 8(b)(1)(A) of the Act makes it an unfair labor practice for a
labor organization to restrain or coerce employees in the exercise of their
Sec 7 rights, one which is to refrain from union activity Sec. 8(b)(2) of
the Act , in part, makes it an unfair labor practice for a labor organization
to attempt to cause an employer to discriminate against an employee to
encourage union membership
1s Sec 8(a)(3) of the Act provides in part that an employer and a labor
organization may lawfully require "as a condition of employment mem-
bership therein on or after the 30th day following the beginning of such
employment " A complimentary provision is included in Sec 7 of the
Act.
TEAMSTERS LOCAL 439 (TRACY AMERICAN READY MIX)
"Membership" as a condition of employment is
whittled down to its financial core.
The Board consistently followed that proposition of law.
See for, example Hershey Foods Corp., 207 NLRB 897
(1973), enfd. 513 F.2d 1083 (9th Cir. 1975). In sum, an
employee who meets his financial obligations to a union
by the tender of payment 1I of initiation fee and dues ob-
tains financial core status and he is not subject to dis-
charge under a union-security provision because of his
failure to seek or obtain full union membership.
When an employee resigns from a union after having
paid an initiation fee and thereafter continues to tender
dues, that employee has financial core status even where
the letter of resignation does not say anything about the
nature of the resignation. Food & Commercial Workers
Local 115 (California Meat Co.), 277 NLRB 676 (1985).
In Professional Engineers Local 151 (General Dynamics),
272 NLRB 1051, 1051-1052 (1984), the Board set forth
principles of law that are controlling on this case. There,
employees resigned from a union during the course of a
strike. Those employees continued to tender dues at all
times that dues were required. The union imposed a new
initiation fee on those employees. The Board held:
The judge concluded that the Union did not vio-
late Section 8(b)(1)(A) of the Act by assessing new
initiation fees against Fraher and Boyko. He found
that Fraher and Boyko voluntarily severed all ties
to the Union by resigning and, relying on NLRB v.
Granite State Joint Board [409 U.S. 213 (1972)], that
after their resignations the Union had no more con-
trol over them "than it has over the man in the
street." He further found that after their resigna-
tions the only duty owned to them by the Union
was to avoid discriminating against them and that
the Union did not seek to impose sanctions on
Fraher and Boyko because of their resignations.
The judge found that Fraher and Boyko became fi-
nancial core members and that, as such, the Union
lawfully could require the payment of nondiscrim-
inatory initiation fees and dues from them. Finally,
the judge concluded that the Union did not dis-
criminate against Fraher and Boyko because it treat-
ed them no differently from other new members.
For the following reasons, we reverse the judge's
decision and fmd that the Union violated Section
8(b)(1)(A) of the Act.
Section 8(b)(1)(A) of the Act prohibits unions
from penalizing employees for exercising their Sec-
tion 7 rights. In the instant case, as noted above,
when Fraher and Boyko were hired each paid an
initiation fee as did all other unit employees. There-
after, they, like all other unit employees, paid peri-
odic dues at all times when such payments were re-
quired by contract. Furthermore, they maintained
their status as employees of the Employer at all
times relevant to this' case and they never left the
unit. Thus, the Charging Parties' status vis-a-vis the
' 1 All the employee can do is tender the payment The Union cannot
change the rights or obligations of the employee by refusing to accept
the tender.
1239
Union and the Employer was identical to that of
the other unit employees except that they, unlike
the others, had exercised their Section 7 rights to
resign and were required to meet only their finan-
cial core membership obligations. Contrary to the
judge, their status was not analogous to that of new
employees or new applicants for membership.
It is therefore clear that the only difference be-
tween the Charging Parties and other unit members
relied on by the Union to justify its assessment of
additional initiation fees was their resignations.
However, employees have a Section 7 right to re-
frain from joining unions as full members and to
meet only their financial core obligations. Here, the
Charging Parties exercise[d] their Section 7 rights
to resign from full membership, in recognition of
those rights the Union accepted their resignations as
valid, and by having previously paid initiation fees
and being current in their .dues the Charging Parties
met the obligations of financial core membership. In
these circumstances, we conclude that the imposi-
tion of the additional initiation fees on the Charging
Parties acted as a penalty for the exercise of their
Section 7 rights. Accordingly, we find that the Re-
spondent violated Section 8(b)(1)(A) of the Act.
In Carpenters Local 470 (Tacoma Boatbuilding), 277
NLRB 513, 514 (1985), the Board reviewed the develop-
ment of the "financial core" concept and held:
... in the recent case of Professional Engineers
Local 151 (General Dynamics), 272 NLRB 1051
(1984), we found the imposition of a second initi-
ation fee on those who had resigned from full union
membership was, in effect, a penalty for their exer-
cise of Section 7 rights to resign . The fees were
therefore levied in violation of Section 8(b)(1)(A).
Thus, regardless of the legitimacy of a union's inter-
ests they cannot negate fundamental Section 7
rights.
It follows that the Union could not lawfully require
McMillen to pay a second initiation fee as a condition of
continued employment, that threats to cause his dis-
charge for his failure to pay such an initiation fee violat-
ed Section 8(b)(1)(A) of the Act; and that the Union's re-
quest that the Company discharge McMillen for failure
to pay that initiation fee and the filing of a grievance by
the Union to compel the Company to discharge McMil-
len violated Section 8(b)(2) of the Act.
CONCLUSIONS OF LAW
1. By threatening to cause the discharge of McMillen
unless he paid a new initiation fee after he had resigned
from the Union during the course of a strike, under cir-
cumstances in which he had continued to tender his
dues, the Union violated Section 8(b)(1)(A) of the Act.
2. By attempting to cause the Company to discharge
McMillen because he failed to pay that new initiation fee
and by filing a grievance to require the Company to dis-
charge McMillen for that reason, the Union violated
Section 8(b)(2) of the Act.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that the Union engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and
(2) of the Act, I recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Union unlawfully attempted to
cause the Company to discharge McMillen becaue he
failed to pay a new initiation fee, it is recommended that
the Union be ordered to notify the Company in writing
that its request that McMillen be discharged is with-
drawn and to send a copy of that notice to McMillen.
Having found that the Union unlawfully filed a griev-
ance to require the Company to discharge McMillen, it is
recommended that the Union be ordered to withdraw
that grievance and to serve a copy of that withdrawal on
the Company and McMillen.
[Recommended Order omitted from publication.]