Communications Workers Local 9201 (Pacific Northwest Bell)

National Labor Relations Board - Board Decisions

Aug 27, 1985

275 N.L.R.B. 1529 (N.L.R.B. 1985)

COMMUNICATIONS WORKERS LOCAL 9201 (PACIFIC NORTHWEST BELL)
Communications Workers of America , Local 9201
(Pacific Northwest Bell) and Violet V. Snow,
Shirley A. Patterson , Patricia L. Bailey, Loren
F. Miller , Jeffrey R. Baker , Michael Beaty,
Becky Willhite , Vicki Bonagofski , Elizabeth
Heinson , Janet Gardner , Della A. Mills, Linda
Burton , Annette Levison , Phyllis Johnson, and
Judy K. Johnson . Cases 36-CB-1092, 36-CB-
1093, 36-CB-1095,' 36-CB-1096, 36-CB-1097,
36-CB-1099, 36-CB-1103, ,36-CB-1105, 36-
C13-1106, 36-CB-1107, 36-CB-1108, 36-CB-
1109, 36-CB-1110, 36-CB-1115, and 36-CB-
1119
27 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 21 December 1984 Administrative. Law
Judge James S. Jenson 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 thi ee-
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, findings, and
conclusions' and to adopt the recommended Order
as modified. -
We agree that the Respondent violated Section
8(b)(1)(A) of the Act by refusing to accept mem-
bers' resignations submitted immediately before or
during the strike, and by imposing court-collectible
fines on those who crossed the picket .line after
they had resigned their membership. We disagree,
however, with the judge's findings that the Re-
spondent was precluded from. fining Michael
Beaty, Vicki Bonagofski, and Phyllis Johnson for
conduct -prior to the time their resignations would
have been effective absent the Respondent's mis-
conduct.
The Respondent commenced a strike against Pa-
cific Northwest Bell (the Employer) on 7 August
19832 and terminated - it on 28 August. Beaty
' The Respondent contends in its exceptions that its "standing rule,"
whereby it refused to accept members' resignations submitted during,the
strike , conforms with the Ninth Circuit's decision in Machinists Local
1327 (Dalmo Victor II) v NLRB, 725 F 2d 1212 (1984 ) However, the Su-
preme Court has vacated and remanded Dalmo Victor II to the circuit
court for further consideration in light of the Court 's decision in Pattern
Makers v NLRB, 105 S Ct 3064 (June 27 , 1985), cert granted 119
LRRM 2992 (July 1, 1985 ) Thus , there can be no question that the Re-
spondent 's refusal to accept resignations during the strike violated Sec
8(b)(l)(A) See also NLRB v Textile Workers Local 1029 . Granite State
Joint Board , 409 U S 213 (1972)
2 Unless otherwise stated, all dates are in 1983
1529
mailed his registered letter of resignation at ap-
proximately 10 a.m. on 8 August. He,then reported
to work at 11 a.m.3 Bonagofski crossed the picket
line on 8 August. Her husband mailed her certified
letter of resignation that -day sometime after he
dropped her off at work. Johnson returned to work
at 6:50 a.m. on 8 August and mailed her certified
resignation letter at 4:40 p.m. that day.
The judge found that the Respondent would not
have accepted or given effect to letters of resigna-
tion submitted during the strike. He therefore con-
cluded that- mailing the resignations in a timely
fashion would have been a futile act and, accord-
ingly; the fines levied against these employees were
invalid in, their entirety.
Contrary to the judge, the futility doctrine has
no application on the facts of this case. In Machin-
ists Local 1374 (Columbia Machine), 274 NLRB 123
(1984), the. Board held that it would apply an ob-
jective standard to determine whether the union's
conduct reasonably created in the members' minds
the impression that any attempt to resign would be
futile. A member is not required to, attempt to
resign when the union has made it clear to the
member that the union -would reject the resignation
in any event. However, the mere existence of the
restriction on resignations is insufficient to support
a ,finding that it is futile to resign, even where the
member has knowledge of the restriction.4 There is
no evidence here that any of these members knew
the Respondent would not accept their resignations
during a strike. (In fact, Bonagofski affirmatively
testified that she.was not advised that she could
not resign during, the strike.) Thus, there is no
showing that any of the three individuals failed to
submit a timely resignation- because he or she had
an objective basis to believe the attempt to resign
would be futile. Columbia Machine, supra. Accord-
ingly, the failure timely to resign was not the result
of 'any impression created by the Union that such
an attempt would be futile.
Since the members had not resigned prior to
their return to work, we find that Beaty, Bona-
gofski, and Johnson were still members and validly
subject to fines for their preresignation conduct.
'Newspaper Guild Local 3 (New York Times), 272
NLRB 338 (1984). Accordingly, we conclude that
the portion of the fines which is attributable to the
employees'- preresignation conduct was lawful.
3 We find that the judge incorrectly distinguished between Beaty's
return to work, at an unpicketed site and his crossing a picket line 2
weeks later The Respondent 's constitution prohibits working without
proper authorization for a struck employer and contains nothing indicat-
ing this prohibition was intended to be limited to picketed sites
4 Columbia Machine, supra
275 NLRB No. 214
1530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
We, however, shall order the Respondent to re-
scind that portion of the fines attributable to con-
duct after the Respondent would have received
.Beaty's, Bonagofski's, and Johnson's letters of res-
ignation.s+ Proof of mailing with proper address
and postage raises a rebuttable -presumption that
the Respondent would have received each letter in
the ordinary course of delivery of registered and
certified mail. See Communications Workers Local
11500 (American Telephone), 272 NLRB 850, 851
(1984). In this case, there is evidence that the Re-
spondent would have received each letter by the
close of business, the day after the letter was
posted.6. We shall, therefore, leave to the compli-
ance stage of this proceeding the determination of
when the Respondent, absent ' its refusal to -accept
registered and certified mail, would have received
their resignations. Further, we shall leave to that
stage the determination of the amount of the fines
attributable respectively to their pre-and' postresig-
nation conduct.
ORDER
The National Labor Relations Board adopts the
recommended Order of the. administrative law
judge as modified below and 'orders that the Re-
spondent,- Communications Workers of America,
Local 9201, Portland, Oregon, its officers, agents,
and representatives, shall take the-action set forth
in the Order as modified.
1. Substitute the following paragraph 2(a).
"(a) Rescind' -the-'fine's levied 'against Violet V.
Snow, Shirley'-A. Patterson, Patricia L. Bailey,
Loren F. Miller, Jeffrey R. Baker, Becky Willhite,
Elizabeth Heinson, Janet Gardner, Della A. -Mills,
Linda Burton, Annette Levison, and Judy K. John-
son; refund any money they may have paid as a
result of the fines levied against them, with interest;
and remove. from. its. records all references to
charges and fines for working for a struck employ-
er- after the. employees resigned their membership,
and notify -the employees -in writing that this, has
been done:'' - . - , %, ' .
2.. Insert the following, as paragraph '2(b)- and re-
letter the subsequent paragraphs. = t ' ' t
"(b)' Rescind' that portion ofi:the fines 'levied
against' Michael Beaty, Vicki Bon-agofski, and 'Phyli
t :t t:
"Its • l: , i t i'
5 In cases where the Board has found the rule governing'resignations
to be invalid, the Board iias concluded that employees ' resignations are
effective upon ieceipi liy the union I Newspaper Guild Local 47-(Pulitzer
Publishing); 272 NLRB 1195 (1984), Carpenters San Diego County Council
(Campbell Industries), 243 NLRB 147, 148 (1979)
6 The record shows that member Pat Early-posted a certified letter of
resignation on 4 August, sometime after 3 30 p'm The letter was re-
ceived and processed by the Respondent on 5 August Thus, it is reasona-
ble to presume, subject to rebuttal, that , absent the Respondent 's unlawful
conduct, the resignations would have. been received' by `the Respondent
the day after they were mailed -
lis Johnson, which is attributable to the employees'
postresignation conduct; refund to the employees
any portion of the fines they have paid for their
postresignation conduct, with interest; and remove
from its. records any reference to the charges and
fines imposed on the employees for their conduct
in the period after they effectively resigned their
membership, and notify them in. writing - that this
has been done." - , -
3. Substitute the attached notice for that of the
administrative law judge.
- APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE,
NATIONAL LABOR RELATIONS BOARD
An Agency of the United= States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT tell our members that they will be
brought up on charges and/or fined if they attempt
to resign their membership for violating our
"standing rule" prohibiting resignations from mem-
bership immediately preceding or during a strike,
nor will we reject their attempts to resign.
WE WILL NOT prefer charges against, fry, or fine
any employee for crossing a picket line and work-
ing without our authorization after that employee
has effectively resigned from our Union.'
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by'Section 7 of the Act,.
WE' WILL rescind' the "standing rule" prohibiting
resignations from membership immediately preced-
ing or during a strike., -
WE WILL rescind the fines levied against Violet
V. Snow, Shirley A., Patterson, Patricia L. Bailey,
Loren F. Miller, Jeffrey R. Baker,,Becky Willhite,
Elizabeth Heinson, Janet Gardner, Della A., Mills,
Linda Burton, Annette Levison, and Judy K. John-
son; WE, WILL refund, any money theys inay ,have
paid as a. re
'
sult, of the fines levied against them,
with ,.interest;: ,and WE WILL , remove from our
records all references to: the charges and, fines im-
posed on them for working for a struck employer
after they 'resigned from 'member'ship in our Union,
and; notify-.them in .writing,,that we have done so.
WE WILL rescind that portion of the fines -levied
against Michael Beaty, Vicki i Bonagofski, and Phyl-
lis Johnson, which is attributable to their postresig-
nation conduct; WE WILL refund to them any por-
tion of the fines they have paid,for their postresig-
nation conduct, with interest; and =WE SWILL remove
COMMUNICATIONS WORKERS LOCAL 9201 (PACIFIC NORTHWEST BELL)
from our records any reference to the charges and
fines imposed on the employees for their conduct
in the period after they effectively resigned their
membership , and -notify them in writing that we
have done so.
COMMUNICATIONS WORKERS OF
AMERICA, LOCAL 9201
DECISION
STATEMENT OF THE CASE
JAMES S JENSON , Administrative Law Judge. Having
been consolidated for hearing , these cases were heard in
Portland , Oregon, on August 14, 1984. The consolidated
complaint alleges that the Respondent Union violated
Section 8(b)(1)(A) of the Act by announcing to its mem-
bers that they would be fined if they violated a "standing
rule" prohibiting resignations from membership immedi-
ately preceding or during a strike , and by imposing
court-collectible fines upon its member-employees, the
charging parties who had either resigned from member-
ship before crossing the Respondent 's picket line, or who
did not resign because of their impression that it would
be futile to do so. The Respondent - denies its conduct
was unlawful , arguing that its rule against accepting res-
ignation was not unreasonable , that what is involved
here is an internal - union matter , and that what the Re-
spondent did "is totally in keeping with" the Board's de-
cision in Dalmo Victor II. i
All parties were given full opportunity to appear, to
introduce evidence, to examine and cross -examine wit-
nesses, to argue orally, and to file briefs Both the Gener-
al Counsel and the Respondent argued orally . Neither
filed a brief.
On the entire record in the case, and from my .observa-
Lion of the witnesses and their demeanor , I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
It is alleged , admitted , and found that Pacific North-
west Bell is a public utility providing telephone and re-
lated services ; that during the past . 12 months its gross
sales exceeded' $1 million , that it meets both the ' Board's
direct and indirect inflow and ' outflow standards; ` and
that it is an employer engaged in commerce within -the
meaning of Section 2(2), (6), and (7) of the Act: -
-II. THE LABOR ORGANIZATION INVOLVED
It-is alleged , admitted , and found that Communications
Workers of Anierica, Local 9201, 1 the -Respondent,; is a
labor organization within the .-meaning of Section[ 2(5)' of
the Act - -
Machinists 'Local 1327 (Dalmo V,ctor), 263 NLRB 984 (1982), enf
denied 725 F 2d 1212 (9th Cir 1984)
III. THE ALLEGED UNFAIR LABOR PRACTICES
1531
A. Background
Pacific Northwest Bell and the Respondent have been
parties to a series of collective -bargaining agreements for
a number of years. In the spring of 1983,2 the Respond-
ent commenced making plans for a strike in the event a
new agreement was not reached with the expiration of
the current contract at midnight, August 6 . A _ special
membership meeting was held on July 18 to take a strike
vote . Balloting continued through July 19 approximately
7Q percent of the membership voted to strike. As the. Re-
spondent and the employer failed to execute a new
agreement by the time the old one expired , a strike com-
menced on August 7. It was terminated on August 28.
The record shows that for a number of years the collec-
tive-bargaining agreement has contained an agency shop
clause. It further discloses that in July , of approximately
3600 unit employees , approximately 2800 were union
members and approximately 800 were not. The record
further reveals that, from July 29 through August 5, the
Respondent processed an additional 90 resignations from
membership. -
While the Respondent 's constitution and bylaws con-
tain no -provision restricting the right of members to
resign during a strike, for a - number of years the Re-
spondent has maintained an unwritten "standing rule"
that resignations would not , be accepted or processed
during a strike . In furtherance of that policy , employees
and agents of the Respondent refused to accept regis-
tered or certified mail during a strike. Respondent Exec-
utive Vice President Richardson informed the Regional
Office in an investigatory affidavit that the reason for the
refusals was "we knew that those [registered and certi-
fied mail] would be resignations " The processing of res-
ignations resumed at the conclusion of the strike; howev-
er, having refused to accept or process the resignations
of • the charging parties, - -,the -Respondent- continues to
carry them on the books as dues-paying members
B. Attempts to Resign
Becky Willhite testified without contradiction that, be-
cause of a wildcat strike in February 1980, she decided
to resign ' from the Respondent Union She therefore
wrote a letter of resignation which she gave to Shop
Steward Michelle Simpson who had offered to take it to
the union office since she was going there for a meeting
Simpson later returned - the letter and,said the Union had
to receive it-by registered mail.3 Accordingly, she sent it
by. . registeredr mail. • She received the-return receipt. evi-
dencing the letter's•'receipt`by the Respondent. While she
continued to receive mail from the Union, she did not
vote in elections ;- attend union meeting 's; and considered
herself a 'nonmember . She, testified further without con-
tradiction that when Union Steward .Chuck Boyden ap-
2 All dates are in 1983 unless stated otherwise
Willhite testified she had called the union hall initially to find out
how to resign , but that she was. refused - help She then called the Board's
Regional Office and was also told , to send. her resignation by registered
mail
1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proached her about doing picket duty during the 1983
strike, she told him that she wasn't a union member and
his response was "Yes, that's right" and took the picket-
ing schedule back. She apparently worked throughout
the 1983 strike She was charged and fined $1,308.50 for
crossing, the picket line.
On August 4, Elizabeth Heinson, Janet Gardner,-Joe
Albrich, Della Mills, and Pat Early sent letters of resig-
nation by certified mail, requesting return receipts show-
ing to whom and the date delivered. Having failed to re-
ceive evidence of delivery, on August 9 those employees
went to the post office and learned that the postal serv-
ice had attempted to make delivery on Friday morning;
August 5, but that the letters had been refused. On
August 11, all five employees signed the following letter
which was sent by regular mail to Linda Rasmussen, Re-
spondent's president:'
Dear Linda,
During this past month it became a growing con-
viction with us that we no longer_ sympathized with
CWA Local 9201 in its recent attitudes and con-
tract demands. With so many people unemployed
and not even able, to make financial ends meet, we
felt that a continuation of the present contract or
-something similar would be adequate. It seems
unfair on the part of a union to force a company in
the midst of -divestiture to guarantee more. than it
can foreseeably deliver Consequently we called the
N.L.R.' board to see if we could still resign our
membership in the union . They said the locals had
differing-ideas about this, so we called our Local
9201 and were'informed per telephone conversation
Thursday, August 4th at approximately 3.30 p.m.
that we could still resign up until the day before the
end of the current contract, which would be up at
midnight August 6th In good faith and in the spirit
of the non-discrimination clause (Article 5, Section
5.2) of the current contract we sent in, our resigna-
tions to CWA, Local 9201 Please note that this was
before the termination of the contract and before we
even knew there was to be a strike! To insure re-
ceipt of delivery we sent our letters, as instructed,
by certified mail. -We' have waited in vain for a
week for our return cards and finally checked today
with the post office. Now we find that our letters
(along with many others) are being held there. Evi-
dently (according to P.O. -supervisor we talked to)
the union refused to accept the certified and regis-
tered nail -and the correct procedure for them is to
notify you of the-mail and wait for you to come
pick it up (To refuse to accept is not only unfair, it
is also short-sighted. One of these letters looked as
if it might possibly have contained money of some-
thing in it that you might have wanted.)
'Why, then,. do we write at all? Because we want
you to understand that as of August 4, 1983, we are
no longer members of the CWA. Local 9201 and we
hold receipts to that effect. This personal letter is an
attempt to get your attention and appeal to your
4 It was stipulated that Rasmussen received the letter
sense of fairness in dealing with your former sup-
porters. This, after, all, is what union activity is all
about. Your behavior at this point such as mail re-
fusal, pickets lobbying in our hallways, picture
taking by Missy Barlow on third floor of Harrison
Square, etc. is more deplorable than any we have
ever witnessed with management in the - Bell
System. If, however, you refused our, certified mail
through ignorance, you still have time, to, rectify
your mistake. Allow us the freedom to follow our
conscience as we want to allow you the freedom to
follow yours.
On August 25, the following letter , signed by Gardner,
Heinson , Albrich, and Mills, was.sent to President Ras-
mussen•5
Dear Linda,
Thursday August 4th, we the undersigned, called
the NLRB and our local CWA #9201 to find out if
we could still resign from the Union. At approxi-
mately 3.30 P.M. on August 4th we were -advised
(per telephone),by, our local union that there was no
time restriction for such action
In good faith and in the spirit of the non-discrimi-
nation clause (Article _5, Section 5.2 of the current
contract), we sent our resignations by certified mail
as we were instructed to do. To find that this mail
had been refused at the union headquarters on
Friday August 5th, after we had complied with
union instructions is tantamount to entrapment.
Enclosed please find copies of the . letters we.
originally sent
Respectfully Submitted,
Heinson crossed the picket line on August 8 and Mills
on August 15. They, along with Gardner, were charged
and fined for having done s0.6 Heinson was fined
$1539 50, Gardner was fined $1554.47, and Mills was
fined $1121.
About 9 a m. on August 8, Loren Miller and Jeffrey
Baker talked to Vice President Richardson at the union
hall. According to Richardson, Miller and' Baker asked
him to accept their resignations from the Union Rich-
ardson declined to do so and informed them that they
had to give at least a 1-week. notice prior to the com-
mencement of the strike to be timely. Miller made the
point clear "that I was resigning my affiliation with the
Union." Baker testified.that- Richardson told "them it was
impossible to resign at'that time and, if they crossed the
picket line, they would be subject to a fine of $500 and
wages. Baker crossed the picket line and returned to
work on August 12, and Miller returned to work August
15. On August, 14, both Miller and Baker composed let-
Early did not sign the letter since she had received the return receipt
for her letter of resignation dated August 4 She was not, as the others
were. subsequently, charged and fined for crossing the picket line
6 The record does not disclose whether Albrich was charged and
fined In any event, the General Counsel stated at the hearing that only
the Charging Parties, all of whom are listed in par 5(a) of the consolidat-
ed complaint, are alleged to have received unlawful treatment
COMMUNICATIONS WORKERS LOCAL 9201 (PACIFIC NORTHWEST BELL) 1533
ters of resignation which they sent to the Respondent by
certified mail on August 15. The Respondent. refused to
accept them. Both were charged and fined for crossing
the picket line. Miller was fined $1.119 50 and Baker was
fined $749. -
Vicki Bonagofski was not aware of any procedural re-
quirement to resign from the Union; nor had she been
told she could not resign during a strike. She testified her
letter of resignation from, the Respondent was mailed
certified, return receipt requested, on August 8, the day
she crossed the picket line. The Respondent refused to
accept it. She was charged and fined $1308.50 for cross-
ing the picket line. -
At approximately 10 a in. on `August 8, Michael Beaty
posted his registered letter of resignation to the Respond-
ent. He reported for work at 11 a in , at a site that was
hot being picketed The letter was returned "unclaimed."
Beaty did not cross a picket line until approximately 2
weeks later He was charged and fined.$1589 for cross-
ing a picket line
. Phyllis Johnson-composed a letter Saturday evening,
August 6, resigning "effective August 6, 1983, 12 mid-
night." She next reported for work on Monday, August
8, at 7 a.m. Her letter of resignation was mailed certified,
return receipt requested, at 4.40 that afternoon. It was
eventually returned as unclaimed. She was charged and
fined $1272.50-for crossing the picket line.
Violet P. Snow mailed her certified letter of resigna-
tion, return receipt requested, on August 9 On August
10, she crossed the picket line and reported for work.
The letter was returned marked "Unclaimed" "Return to
sender." She was charged and fined $1,242.38 for cross-
ing the picket line
Shirley Patterson mailed her certified letter of resigna-
tion, return receipt requested, on August 9. Failing
return of the return receipt, on August 12 she called an
attorney who told her to send another, letter of resigna-
tion by messenger service.' Accordingly, another letter
of resignation was hand delivered to Marilyn Dorren-
bacher, the Respondent's office manager, on, August 12
at 10:15 a.m. Patterson crossed the picket line on August
15, for which she was charged and fined $1161 50.
Prior to writing an August 11 letter- of resignation,
Linda Burton had called the Respondent's office and had
been informed by the office manager "that in order to
resign I had to send in a registered letter, and she doubt-
ed if. anyone would be authorized to accept registered
letters at the union hall." She then wrote a letter of res-
ignation which she hand, delivered to the office manager
,who "threw it in an in-basket " Although Burton 'was
informed the Respondent was,not accepting resignations,
the letter was not returned to her. On August 15, Burton
hand delivered another.letter to the'union hall, at.which
time she orally requested a copy of the constitution and
bylaws, which request was denied. ;She was again in-
formed that Respondent was not accepting resignations.
The August 15 letter reads:
Since I have received no written reply to my res-
ignation personally delivered to your office in writ-
ing on 8-11-83, and, I have not received a copy of
the Constitution & Bylaws requested by telephone
twice on 8-9 and again requested by me in person
in your office on 8-11-83 which on 8-11-83 1 was
told they would be-mailed to me. I was'also told on
8-11-83 that I could not even read them while in
your ofc. that day. I therefore interpret this action
as an acceptance of my resignation
Burton returned to work August 16 or 17. She was
also charged and fined $911 for crossing the picket line.
Prior to the strike Patricia Bailey was informed by
two shop stewards in separate conversations that "you
couldn't resign during the strike"; that "It had to be like
30 days before", that resignations would not be accepted
after the strike started, and that the Union would fine
people that crossed the picket line. Nevertheless, on
August 11, .Bailey wrote a letter of resignation which she
posted on August 12 by certified mail, return receipt re-
quested . The letter was returned later as "unclaimed "
As she informed the Respondent in her letter of resigna-
tion, Bailey returned to work on August 15. She was
charged and fined $790 for crossing the picket line.
Judy Johnson wrote her letter of resignation on
August 12 and attempted to hand deliver it to Orla
Strickland, the Respondent's official secretary. Strickland
refused the letter and sent Johnson to the office where
she gave it to the office manager, telling her it was her
resignation. Johnson testified the office manager stated,
"She couldn't accept it, but she'd take it, and I left it at
that and I left " She went back to work on August 15,
was later charged and fined $1379.
Annette Levison honored the picket line until Sunday,
August 21, when she returned to work On August 20
she prepared a letter of resignation. The morning of
August 21, she called the union hall about 10.30 a.m. Be-
cause someone answered the phone, Levison went to the
union.hall 'to deliver the letter. Finding the door to the
building' locked, she inserted the letter, which was ad-
dressed to "CWA", at that address, through the mail -slot
in the door and left: It appears from the record that sev-
eral other labor' organizations are also located at that ad-
dress She was charged and fined $838.09 for crossing
the picket line
Discussion
Article XIX of the Respondent's constitution' deals
with charges against members. Section 1 "Specifications
-of Offenses-Locals" 'provides that.
Members may be fined, suspended' or expelled by
Locals in'-the' manner provided in the 'Constitution
for any of the' following acts-
(e) Working -withouttpropei- union authorization,
during the period of a properly 'approved strike in
-or'for an establishment - that is'being struck by the
Union or Local.
7 A postal employee informed her that the Respondent was not. accept-
ing certified mail -
The Respondent rests the validity of its imposition of
court-collectible fines on members whose resignations it
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
declined to process on the above provision . The constitu-
tion and bylaws fail to contain any prohibition against re-
signing from membership.
The General Counsel points out that the Respondent's
vice president testified that the reason the Respondent
refused to accept registered or certified mail during the
strike was because it knew such mail contained resigna-
tions. He argues that where , as here, the constitution and
bylaws are silent with respect to resignations , any efforts
to restrict them are invalid and unlawful . He further
argues that since the Respondent would not process any
resignations during the strike, it would have been futile
for those individuals who resigned contemporaneous
with or shortly after crossing the picket line to have re-
signed or attempted resignation before , pointing out that
"the law does not require futile gestures."
In Machinists Local 1414 (Neufeld Porsche-Audi), 270
NLRB 1330 ( 1984), the Board reviewed prior Board, cir-
cuit court , and Supreme Court decisions regarding a
union 's authority to enforce its rules against member and
nonmember employees and held that any restrictions
placed by a union on its members' right to resign are un-
lawful . The Board stated (id. at 1333-34):
Most obviously , restrictions on resignations
impair the fundamental policies found in the express
language and consistent interpretation of Section 7.
That section expressly grants employees "the right
to refrain from any or all" protected concerted ac-
tivities . This statutory right encompasses not only
the right to refrain from strikes, but also the right to
resign union membership . 14 The only statutory limi-
tation on these Section 7 rights is contained in Sec-
tion 8 (b)(2) and the second proviso to Section
8(a)(3) of the Act. Even under those provisions,
however , no employee can be compelled to become
a full union member , and an employee thus remains
free to choose to refrain from union or other con-
certed .activities .' 5 Certainly , when a union seeks to
delay or otherwise impede a member 's resignation,
it directly impairs the employee 's Section 7 right to
resign or otherwise refrain from union or other con-
certed activities . In addition , by creating the fiction
of continued membership , restrictions on resigna-
tions undermine the policies of Section 8(b)(2) and
the second proviso to Section 8(a)(3) that serve to
prohibit a union from compelling full union mem-
bership.
Similarly , restrictions on. resignation , also impair
the fundamental policy repeatedly recognized by
the Supreme Court to be imbedded in the very
fabric of the labor laws that distinguishes between
internal union actions and external union actions. A
consistent and enduring basis for distinguishing be-
tween ,internal and external actions is whether the
union 's action applies only to union members. ' By,
unilaterally extending an employee 's membership
obligation through restrictions on resignation, a
union artificially expands the definition of internal
action and can thus continue to , regulate conduct
find no basis in the Act for allowing unions to alter
unilaterally the statutory structure so carefully elu-
cidated by the Supreme Court.
Second, we reiterate the position expressed in the
concurring opinion in Dalmo Victor II that any
effort to equate the institutional interests of a union
with the statutory rights of employees is inappropri-
ate. See 263 NLRB at 990-991 For, regardless of
their legitimacy , the' union 's. interests simply cannot
negate or otherwise overcome fundamental Section
7 rights.
Third, any argument that suggests that the only
conflict here is between unions and employees who
want to resign misperceives and ignores another
fundamental conflict, namely, that between those
employees who choose to engage in strike activities
and those who wish to refrain . In this conflict the
Board should not and cannot compromise the neu-
trality of the Act in favor of the rights of striking
employees at the expense of the rights of employees
who choose not to strike by sanctioning a union's
efforts to restrict resignations . For to do so is to
ignore the literal prescription of Section 7 that the
Act protects, with equal vigilance: the rights of em-
ployees to engage in and to refrain from union or
other concerted activities.
As-for the final portion of the Scofield[8] test, to
give effect to a union 's effort to ignore resignations
is contrary to the Court's holding that employees
must be "free to leave the union and escape the
rule." The Court expressly recognized that a
union's authority does not extend to employees who
do not choose to remain part of the union and sub-
ject to its rules . In our view , it is apparent that this
principle is violated by a rule that tells employees
they cannot, in fact, escape the rule.
'a Booster Lodge, above, 412 US' at 87-88, Granite State,
above, 409 U S at 217-218, NLRB v Machinists Local 1327
(Dalmo Victor), 608 F 2d 1219, 1221 (9th Or 1979), NLRB v Ma-
chinists Lodge 1871 (General Dynamics Corp), 575 F 2d 54, 55 (2d
Cir 1978),, Electrical Workers Local 66 (Houston Lighting Co), 262
NLRB 483 (1982), Sales, Service, and Allied Workers' Union (Cap-
itol-Husting Co), 235 NLRB 1264 (1978) '
15 NLRB v General Motors Corp, 373 US 734, 742 (1963)
"`Membership ' as a condition of employment is whittled down to
its financial core " Thus, the Board has held,_ with court approval,
that a union violates Sec 8(b)(1)(A) when it refuses to accept the
resignations of employees on 'the ground that full membership is a,
.condition of. employment Service Employees Local, 680 (Leland
Stanford Junior University), 232 NLRB 326 (1977), enfd 601 F 2d
980 (9th Cir, 1979)
The Board has also held that where there 'is no estab-
lished,method for, resignation, a member may advise the
union of his intent to resign in any reasonable- way, in-
cluding - orally, so long . as - the -intent is clearly
conveyed Machinists Local -2045 (Eagle Signal); . 268
NLRB 635 (1984). It, is clear from the facts in the, instant
case that the Respondent's "standing rule" prohibited
resignations, from, membership immediately -preceding or
during a strike, and was unlawful. Pursuant to that rule,
the Respondent refused to accept or give effect to either
over which it would otherwise have no control. We s 394 U S 423 (1969)
COMMUNICATIONS WORKERS LOCAL 9201 (PACIFIC NORTHWEST BELL)
oral or written resignations of its members In 1980 Will-
bite's first letter of resignation was taken to the union
office by a shop steward and refused on the ground it
had to be sent by registered mail. Willhite sent the resig-
nation by registered letter, which the Respondent re-
ceived Her resignation was not processed. Heinson,
Gardner; • and - Mills mailed letters of resignation on
August' 4.-. They were refused by the Respondent on
August 5.; On August 9 --and again on August 25, they
sent letters reiterating their August 4 • resignations. On
August 8, Miller and Baker orally informed Richardson
that they were resigning. He refused to accept the resig-
nations and told them they would be subject to a fine if
they crossed the picket line. Although their oral resigna-
tions were valid under Board law, they mailed written
resignations on August 14, which were refused. Snow's
letter of resignation dated August 9 was refused. Patter-
son's letter of August 9 was refused, and the Respondent
refused to give effect to her August 12 letter of resigna-
tion which was delivered to the Respondent's office by
messenger service. Burton's August 11 hand-delivered
letter of resignation was received. by Respondent and
thrown "in an in-basket." On August 15, she delivered
another letter to the Respondent's office, stating that she
interpreted certain of Respondent's acts "as an accept-
ance of my resignation." Although Bailey had been in-
formed by shop stewards that resignations would not be
accepted after the 'strike started and that the Respondent
Union would fine people who crossed the picket line, on
August 12 she mailed a letter of resignation to the Union
wherein she stated she would return to work on August
15, which she did. The letter was refused. Judy John-
son's hand-delivered letter of resignation dated August
12 was refused by an officer of the Respondent. She then
left it with the office manager who stated, "She couldn't
accept it, but she'd take it." Levison left her letter of res-
ignation in the Respondent's mail slot. All of the. forego-
ing attempts to resign preceded the return to work of the
respective employee. - Only the - resignations of Bona-
gofski, Beaty, and Phyllis Johnson were mailed contem-
poraneous with or shortly after the employee returned to
work. Bonagofski's letter was mailed August 8, the day
she went back to work; Beaty's was mailed on August 8,
an hour before he went to work at a site not picketed;
and Phyllis Johnson's letter of resignation, written on
and "effective" at midnight August 6, was mailed at 4:40
p.m. on August 8, although. she went' to work that morn-
ing. It is clear, however, that the Respondent' would not
have accepted or given effect to any of them during the
strike had they been mailed'in time for the post office to
have delivered them prior to' the employees' return to
work. In light of the Respondent's unlawful policy, to
have submitted the resignations earlier would have been'
a futile act, 'which the Board does not require. Accord=
ingly, it is found that the'Resporident's policy of:refiising
resignations was unlawful, that'the"resignations of'the 15
Charging Parties were effective when tendered,' and that
-they were no longer members of the Respondent Union
when they were subjected to court-collectible fines for
crossing a picket line and "working without union au-
thorization." '
1535
CONCLUSIONS OF LAW
1. Pacific Northwest Bell is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act. -
3. By telling member/employees that they will be
fined if they attempted to resign their membership from
Respondent Union in contravention of the "standing
rule" prohibiting resignations from membership immedi-
ately preceding or during a strike, and by rejecting at-
tempts to resign, the Respondent violated Section
8(b)(1)(A) of the Act.
4. By imposing court-collectible fines against the fol-
lowing employees for crossing a picket line and working
without union authorization, after they effectively re-
signed their membership in the Respondent Union, the
Respondent violated Section 8(b)(1)(A) of the Act:
Violet V. Snow Shirley A. Patterson
Patricia L. Bailey Loren F. Miller
Jeffrey R. Baker - Michael Beaty
Becky Willhite Vicki Bonagofski
Elizabeth Heinson Janet Gardner
Della A. Mills Linda Burton
Annette Levison Phyllis Johnson
Judy K Johnson.
5 The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent Union engaged in
certain unfair labor practices , I recommend that it be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.'
Having -Mound' that the Respondent Union fined the
Charging 'Parties , in violation of Section 8(b)(1)(A) of the
Act, `I shall recommend that the Respondent Union be
ordered to refund to the respective Charging Parties any
moneys they may have paid as a result of the fines im-
posed against them , ' with interest computed in the
manner prescribed iii Florida Steel Corp., 231 NLRB 651
( 1977) 9 It is further recommended that the Respondent
Union be ordered to remove from its files any reference
to the unlawful charges; trials, and fines of the Charging
Parties and notify them in writing that it has done so and
that the charges, trials, and fines will not be used against
them in 'any way . I shall also ,recommend that the Re-
spondent Union cease' and 'desist from maintaining its
"standing rule" 'prohibiting resignations from member-
ship' immediately preceding or during a strike Neufeld
Porsche-Audi, supra.
On these findings of `fact and conclusions of law and
on the entire record, .1 issue the following recommend-
ed10'
9 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
10 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations,` the' findings, conclusions, 'and recommended
Continued
1536 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, Communications Workers of Amer-
ica, Local 9201, Portland, Oregon, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Telling members that they will be brought up on
.charges and/or fined if they attempt to resign their mem-
bership in violation of our "standing rule" which prohib-
its resignations from membershp immediately preceding
or during a strike
(b) Preferring charges against, trying, or fining an em-
ployee for crossing a picket line and/or working without
union authorization after they have effectively resigned
from the Union.
(c) In any like or related manner restraining or coerc-
ing employees in the rights guaranteed in Section 7 of
the Act. -
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the fines imposed against Violet V. Snow,
Shirley A. Patterson, Patricia L. Bailey, Loren F Miller,
Jeffrey R. Baker, Michael Beaty, Becky Wilihite, Vicki
Bonagofski, Elizabeth Heinson, Janet Gardner, Della A.
Mills, Linda Burton, Annette Levison, Phyllis Johnson,
and Judy K. Johnson, refund any moneys they may have
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses -
I
paid as a result of the fines imposed against them, and
remove from its records all references to the proceedings
which resulted in the fines.
(b) Rescind its "standing rule" prohibiting resignations
from membership immediately preceding or during a
strike.
(c) Post at its offices and meeting halls, copies of the
attached notice marked "Appendix."" Copies- of the
notice, on forms provided by'the Regional Director for
Region 19, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-'
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Furnish the Regional Director with signed copies
of the notice to be posted by Pacific Northwest Bell, if
that Company is willing to post it.
. (e) Notify the Regional Director in writing within 20
days from the date of-this Order what steps it 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 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 "
I