Communications Workers of America

National Labor Relations Board - Board Decisions

Dec 3, 1970

186 N.L.R.B. 1008 (N.L.R.B. 1970)

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Communications Workers of America, Local 2108,
AFL-CIO (The Chesapeake and Potomac Tele-
phone Company of Maryland, Inc.) and John J.
Hurley. Case 5-CB-861
December 3, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On April25, 1969, Trial Examiner Ramey Donovan
issued his Decision in the above -entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action , as set forth in the
attached Trial Examiner's Decision . Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three -member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner 's Decision , the exceptions and brief, and
the entire record in the case , and hereby adopts the
findings ,' conclusions , and recommendations of the
Trial Examiner as modified herein.
In accord with our recent decision in Booster Lodge
No. 405, International Association of Machinists and
Aerospace Workers, AFL-CIO ( The Boeing Company),
185 NLRB No . 23, we find that Respondent violated
section 8(b)(1)(A) of the Act by imposing a fine upon
John J . Hurley for working during a strike . The facts
set forth in the Trial Examiner 's Decision , which we
adopt, establish that Hurley had resigned from the
Union before he committed the acts for which he was
disciplined.
As we have found that Respondent violated the Act,
we shall order it to cease and desist from such
conduct . Accordingly, we shall modify the Trial
Examiner 's Recommended Order to reflect our
decision herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that Respondent, Communications
186 NLRB No. 147
Workers of America, Local 2108, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's Order:
1. Delete paragraph 1(a) and substitute the follow-
ing:
"(a) Restraining or coercing John J. Hurley, who
had resigned from and who was no longer a member
of the Union, in the exercise of his rights guaranteed
in Section 7 of the Act, by imposing a fine against him
because of his postresignation conduct in working at
the Upper Marlboro, Maryland, Dial Center of
Chesapeake and Potomac Telephone Company of
Maryland, Inc., during the April-May 1968 strike."
2. Delete paragraph 2(a) and substitute the follow-
ing:
"(a) Reimburse or refund John J. Hurley for any
fine he may have paid under the circumstances
described in paragraph 1(a) of this Order, the amount
of said fines imposed because of postresignation
conduct in working at the aforesaid Dial Center, with
6 percent interest."
3. Substitute the attached Appendix for the Trial
Examiner's.
MEMBER BROWN , dissenting:
Contrary to my colleagues, I would not find a
violation herein for the reasons set forth in my
separate opinion in The Boeing Company, supra.
i The Respondent excepts to the Trial Examiner's finding that the
Charging Party mailed his resignation to the Respondent on April 12, 1968
In so excepting , the Respondent has excepted to certain credibility
determinations of the Trial Examiner After a careful review of the record,
we conclude that these credibility findings are not contrary to the clear
preponderance of all relevant evidence Accordingly, we find no basis for
disturbing these findings Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3)
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees who
had resigned from the Union and who, in the
exercise of their rights guaranteed in Section 7 of
the Act, worked at the Upper Marlboro, Mary-
land, Dial Center during the April-May 1968
strike, by imposing a fine.
WE WILL reimburse John J. Hurley for any fine
he may have paid to us for working during said
strike with 6 percent interest.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed to them in Section 7 of the
National Labor Relations Act.
COMMUNICATIONS WORKERS OF AMERICA 1009
COMMUNICATIONS
WORKERS OF AMERICA,
LOCAL 2108 , AFL-CIO
(Labor Organization)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Federal Building, Room 1019, Charles Center,
Baltimore, Maryland 21202 , Telephone
301-962-2822.
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner- The charge in this
case was filed on September 3, 1965, by Hurley, an
individual, against the above captioned labor organization,
herein called Respondent or the Union. The complaint
issued under date of December 11, 1968, and alleged
violation of Section 8(b)(1)(A) of the National Labor
Relations Act, as amended. In substance, it is alleged that
there was a strike and picketing by the Union against the
employer Telephone Company and that Hurley worked
during part of the strike when he was not a member of the
Union; and that, thereafter, the Union tried Hurley and
imposed a fine on him of $500 because of his activities
during the strike. Respondent's answer, in substance,
alleges that the Union tried and imposed a fine on Hurley
because of his activities during the strike and during which
he was a member of the Union and that Hurley was a union
member and had never resigned from that organization. It
is further stated that Respondent has taken no court action
to collect the fine from Hurley.
With the General Counsel and the Respondent represent-
ed by counsel, the case was tried before the Trial Examiner
in Washington, D.C on February 4, 1969. Both parties
subsequently filed able briefs with the Examiner.
1 JURISDICTION
The factual and legal jurisdictional basis for this
proceeding has been alleged and admitted in the complaint
and answer, respectively, which are part of the instant
record. Briefly stated, Hurley is and was an employee of
The Chesapeake and Potomac Telephone Company of
Maryland, Inc, a public utility, with its principal place of
business in Baltimore, Maryland, and with a Dial Center in
Upper Marlboro, Maryland The Company is an employer
engaged in commerce within the meaning of the Act.
I There is and was a contract in effect between the Company and the
Communication Workers of America. the international union of which
Local 2108 is an affiliate This contract contained an April 1968 wage
reopener clause The local union has its office in Silver Spring. Maryland,
an area which, like Upper Marlboro, where the Company has a dial center.
is in the general Metropolitan Washington, D C , area.
The Union is a labor organization within the meaning of
the Act.i
Ii. THE ALLEGED UNFAIR LABOR PRACTICES
Hurley had worked in the Company's Upper Marlboro
office about 3 years. He had been a member of Local 2108
for 3 or 4 years At one time, for almost 2 years, he had been
a union shop steward and he had also been acting chief
steward. Apparently, he did not hold these union positions
in 1967 or in 1968. His job with the Company was
switchman and his base pay was $32 per day.
In early April 1968, there was a difference of opinion
between Hurley and the Local about the processing of a
grievance of his relating to emergency call-up pay. The
Local decided that the matter would not be taken to
arbitration because it considered it as "not arbitrable"
under the contract.2
On April 10, 1968, the Local held a meeting to take a
strike vote. As a member of the Union, Hurley attended.
His testimony shows that he did not like "how it [the
meeting] was run and . . . how the officials completely
ignored what the members wanted. ..."3 While the vote
was being taken, a sort of hiatus in the meeting, Hurley
states that he went up to Evans, vice president of the Local,
who was evidently either the presiding officer at the
meeting or was associated with that function. According to
Hurley, he said to Evans, "These members elected you to
office Why can't you be honest and truthful and above
board and answer their questions honestly and truthfully
and without hedging or fudging or anything else. They
elected you and they put their trust in you." Hurley states
that Evans replied, "We do not necessarily represent the
wishes of the members but the policies of the C.W.A We
swore to this in our oath of office." Hurley then said,
according to Hurley, "You just lost a member [meaning
Hurley ]."
Basically, and on the relevant and material aspect of
whether, on April 10, Hurley's attitude and state of mind
toward the Union was highly critical and in the nature of
disillusionment and disgust, the testimony of Evans is not
in contradiction to that of Hurley. Evans states that during
intervals at the meeting he talked to many groups of the
members and that Hurley was in one of these groups.
Because of the large number of people involved, Evans
states that the only reason he recalls Hurley was due to the
fact of Hurley's "belligerent manner-he kind of stood out
among the other people " Evans could not recall the words
used in the conversation but he states that Hurley "was very
disturbed that the President, President Burn of our
International [Beirne, President of the CWA, the Interna-
tional Union] had called off a strike that was supposed to
have been for a certain period...." According to Evans,
Hurley's major complaint was that Beirne had no right to
do what he did when the membership of the Local wanted
to strike at, evidently, the original strike time. Evans states
2 A letter, dated April 2. 1968 signed by Bachman, president of the
Local, so advised Hurley
' It is not our concern how the meeting was run or whether Hurley's
opinion was right or wrong We are interested in his feelings or attitude
toward the Local as represented by its officials
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he, Evans, had been trying to explain that the calling
off or delay in the strike by Beirne was due to the fact that
Beirne felt that the good of all concerned, the community,
the country, and the union members dictated the delay
because of the eruption of the widespread civil disturbances
in Washington, D.C., at that time. Many members beside
Hurley were pressing Evans on the calling off or delaying
the strike but Evans particularly remembered Hurley
because "he pressed it a little more than some of the
others." Hurley argued, according to Evans, that the civil
disturbance situation was one where the Union "had the
company with its pants down [and] we should go ahead and
go on strike . . . [and] the big argument was that he
[Beirne] had no right to do this [delay or call off the strike].
The membership wanted the strike and he [Beirne] had no
right to call it off." Evans states that he did not hear Hurley
say, "you have just lost a member" or words to that effect.
As the Examiner views the picture it is this: About a week
before the April 10 meeting, the Local had refused to take a
grievance of Hurley's to arbitration. We do not overempha-
size this incident or its effect on Hurley when viewed in
isolation. However, most grievants feel they have been
wronged and that is the reason for filing the grievance. The
degree of feeling or conviction about a grievance by a
grievant may vary but regardless of the degree of
conviction, even if 50 percent rather than 90 or 100 percent,
a grievant usually feels that his union should take the
grievance as far as it can; i .e., to arbitration. If the
arbitrator finds against the grievant, the latter at least feels
that he and the Union have done all that could be done. But
when the Union refuses even to submit the grievances to
arbitration (and this is, and properly so, under certain
circumstances, a decision that a union must often make),
the grievant is frequently unhappy. If the grievant is a
person of strong convictions and as unobjective as perhaps
most or many people are where their own self-interest is
involved, then he may deeply resent the refusal of the
Union to put the grievances to arbitration. This may well
have been Hurley's state of mind between April 3 and 10
since the record reveals him to have been an articulate
person of strong feelings and convictions. Whether right or
wrong is not our concern. But the least that can be said, in
our opinion, is that the Union's disposition of Hurley's
grievance did not create any endearment toward the Union,
personified by its officers, in a person such as Hurley.
Whether or not Hurley came to the April 10 meeting with
a predisposition or at least a receptivity to be antagonistic
to the administration of the Union is not too important.
This for the reason that at the meeting the antagonism and
strong feeling of Hurley are clear. We find no basic conflict
in the testimony of Hurley and Evans. Evans remembered
that Hurley stood out in his belligerence toward the official
policy of the Union as it was explained and defended by the
officers of the Local. Evans admittedly did not remember
details, such as the words and language used. We credit the
versions of both witnesses and find them to complement
4 Although Evans testified that he did not hear these or similar words
from Hurley, we do not find it necessary not to credit Evans All the
conversations and arguments, as Evans testified, were in groups of people
Hurley was in one of these groups Probably a number of people were
talking and arguing back and forth Evans did not profess to have heard or
to remember everything that was said He could only recall Hurley because
each other in giving us the picture. Expressing very strong
feelings on the matter, Hurley belligerently attacked the
policy decision of the International Union not to strike at
that time. He argued that the president had no right to
abrogate or change what the local members wanted to do.
Evans was explaining and defending the president's
decision. Regardless of whether Hurley was right or wrong,
it is apparent that the conflict was on a pretty basic issue.
But, in addition to a strong attack on the policy itself,
Hurley manifested strong feelings about the Local's
administration. In effect, he told Evans that although the
latter was elected by the members, he was being unfaithful
to their "trust" and was not being "honest," "truthful" or
"above board" and that, instead of being "honest," he was
"hedging" and "fudging" on the matter of the strike. This is
pretty strong criticism. It is a combined attack not only
against a basic policy decision of the union but against the
honesty and integrity of the administration of the officer or
officers of the Union. How much more cleavage can there
be between an individual and an organization to which he
belongs?
It is clear that Evans was defending and explaining the
policy decision of the International president. Hurley was
strongly attacking it and was stressing that the members'
position could not be thus altered. He, in substance,
reminded Evans that the members had elected him and had
placed their trust in him and, impliedly, said that Evans
should be supporting the members or local autonomy. In
this context, Evans said that the officers supported or
represented the policies of the CWA and not the wishes of
the members. To a person strongly advocating Hurley's
point of view of local membership determination, and his
critical attitude regarding the honesty and faithfulness of
the union's local administration, this position of Evans was
evidently intolerable. Given such a situation and an
attitude or position like Hurley's, we can readily envisage
such a person then saying something like, well, if that is
your attitude; or, if that is the kind of union this is, you can
have your union; or you can consider me an ex-member;
or, as Hurley states he said, "you havejust lost a member."
We find Hurley's testimony regarding the August 10
meeting quite credible and we so find.4
Our detailed description of events at the Wednesday,
April 10, meeting is not due to our interest in the meeting
itself. As will appear shortly, there is a difficult credibility
issue in this case involving whether or not Hurley resigned
from the Union and communicated his resignation to the
Union. Within that issue and necessary to its solution are
several questions that must be answered. Among the initial
questions are whether it is likely that Hurley would resign
or would want to resign from the Union when he claims
that he did.
Hurley testified that on Friday, April 12, he mailed a
letter of resignation from the Union, together with his
check for dues for the second quarter, to the Union's office
in Silver Spring, Maryland.5 Hurley states that another
of his belligerence and did not attempt to quote his words
9 The contract between the Company and the Union provides that if an
employee is a member of the Union on or after the 30th day following the
commencement of his employment , or on or after the contract 's effective
date (October 11, 1966), whichever is latest , he must, as a condition of
COMMUNICATIONS WORKERS OF AMERICA 1011
switchman employee, Hall, witnessed the foregoing. Hall
corroborates Hurley. Hall places the time as about a week
before the April 18 strike and Hurley states that the date
was April 12, Friday. Hurley, in longhand, wrote the letter
in the morning in the lounge of the Company's Upper
Marlboro Switch Center. The letter was brief and said, "I
resign from membership in Local 2108, Communication
Workers of America." Hall, signed the letter as a witness.
Hurley placed the letter in an envelope, together with his
dues check. This was in the presence of Hall. Hurley then
sealed the envelope and Hall initialed the sealed flap on the
envelope.6 The two men then separated to return to work
since the foregoing had taken place during the morning
break period, about 10 a.m. About noon, Hurley and Hall
drove together to the post office, about half a mile away.
Hall inspected the sealed envelope bearing his initials "to
make sure it hadn't been opened." Hurley then dropped the
stamped envelope into the post office mail slot.7
Hurley states that about April 15 he telephoned the union
office and spoke to Allison, a full-time clerical employee in
the office. He asked Allison if she had received his letter of
resignation and his dues check and she said, yes. According
to Hurley, Allison asked him to withdraw his resignation,
remarking that Bachman, the president, was doing the best
job he could under the circumstances Hurley said he
wanted the resignation to take effect.
The strike commenced April 18, Thursday, and contin-
ued until May 6. Hurley did not go to work at the inception
of the strike but did commence working on April 24 and
thereafter. He worked a total of 9 regular working days
during the strike.8 He did not work overtime and his
earnings during the strike were $288. Hurley was asked
why, after sending in his resignation to the Union, he
remained away from work for several days at the beginning
of the strike. He testified that "I was not opposed to the
strike as such . . . I told the other employees that I was
going to be on strike for 3 or 4 days in deference to them
. . After that I was coming in [to work] because if I stayed
out any longer I would be supporting the Union. I did not
want to support this Local of the Union... .
By letter of June 14, 1968, from Shore, secretary of the
Local, Hurley was notified that charges had been filed
against him for violating the constitution of the CWA and
the bylaws of the Local for working during an approved
strike. He was notified of his scheduled trial to be held June
25. Hurley did not appear at his trial and he was found
guilty. By letter of June 26, he was notified by Shore that
the trial board had found him guilty and had fined him
$500. Hurley's right of appeal was referred to in the letter .9
Allison testified that she had been working at the union
office every day between April 12 and May 8. She opens all
incoming mail and then places it in President Bachman's
incoming box. Bachman then distributes the mail to the
other offices. All the Local's officers are employees of the
Company and are not always in the office.
According to Allison, sometime (she does not remember
the date) between April 12 ' and May 8, she opened an
envelope that contained Hurley's dues check for the period
ending June 30, 1968. She entered this on a card in a file she
maintains for the relatively small number of cash dues
payers.10 Under Hurley's card, Allison made the entry that
cash dues were paid through June 1968, by a check dated
April 12, 1968, Maryland National Bank, Upper Marlboro,
Maryland.ii No notation was made as to date of receipt of
the check. Allison states that when she opened the envelope
there was nothing there except the check. She recalled no
unusual marking on the envelope.
As to why Allison did not write on the office card the
date of receipt of the check although she did write thereon
the date of the check, the name of the bank on which it was
drawn and the address of the bank, we can only conjecture.
If a check is dated April 12, as the cancelled check of
Hurley shows, an office receiving such a check within I or 3
days thereafter, allowing for an intervening weekend, may
perceive no reason for noting the date of receipt since it was
received within normal delivery time. The date of the check,
which Allison did write down, may therefore be sufficient.
The lack of a notation of the date of receipt may simply
indicate normal receipt in the course of delivery of a mailed
check. But if a check dated, April 12, is received on a date
beyond the normal area of expectable receipt, the clerical
employee may deem it prudent to note the date of receipt. It
may be surmised by the clerical, in the situation posed, that
the check was predated for some reason. Perhaps the reason
for predating, unknown to her, may later prove to be
significant. She therefore deems it appropriate to note when
the check was received, so that if the sender subsequently
claims that he mailed his April 12 check on that date and
that therefore it was received 1-3 days thereafter, her
records will show that such was not the case and that the
April 12 check was received on April 18, 20, 30, or May 7,
whatever time the card shows. The absence of the date of
receipt on the card, therefore, may indicate that the April
12 check was received within the 1-3 days expectancy
period for mail delivery. This is at least one possible
explanation in the face of no other explanation in the
record.
Allison testified that during her approximately 2 years'
employment at the union office she had never met or seen
Hurley but she did know that a man named Hurley was one
of the relatively few persons who paid dues directly and not
by checkoff. Regarding dates, Allison states, "I can't
remember dates because I get too many calls during the day
to remember dates." She testified that she recalled an
occasion when Hurley telephoned about his dues in April
1968. At this time she states that Hurley identified himself
"but many times before and after this I got to know his
voice, naturally by the number of calls." On this occasion
when Hurley specifically identified himself, Allison states
that he asked if she had received his dues check. She
employment, pay or tender to the Union "an amount equal to the periodic
union dues
6 The "seal" was the ordinary glue on the flap of the envelope
r The letter was not sent registered or certified.
9 His regular work is a 5-day week and this is what he worked during
the stoke
9 Hurley did not appeal A total of 55 persons in the membership of
over 1,600 were fined
10 Most of the employees have a payroll deduction for their dues
11 This quite evidently is Hurley's check, dated April 12, 1968, which is
in evidence This check shows CWA Local 2108 as the payee in the amount
of $1755, with the notation, dues through June 30, 1968, in the payor's
(Hurley's) handwriting A bank stamp on the check as "Paid" is dated May
1968
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checked her records and said that she had not received the
dues for the second quarter (April-June). According to
Allison, Hurley then said that he must have left the check in
his truck but that he would send it in. Subsequently, how
much later Allison could not say, she received Hurley's
check. Some time later, she states that Hurley called to ask
if she had received the check and she said, yes. Allison said
that she could not remember the date of the last call
because it was during or before the strike
In rebuttal, Hurley testified that in the first quarter of the
year he had remembered writing a dues check and putting it
in an envelope but could not remember whether or not he
had mailed it. He then called Allison to see if she had
received the check. When she said no, he checked his truck
and found the envelope down behind the seat. He then
mailed it in.
As mentioned previously, Allison testified that Hurley
had called the office a number of times. As to the content of
the calls, Allison described the call about the dues check,
above. She also recalled that during this period of calls on
one occasion Hurley was complaining that Bachman, the
president, was not doing enough or had not done enough
about a grievance. Allison states that she said to Hurley,
that Bachman was doing the best he could and that he
could only "go so far with the grievances" but Hurley said
that he wanted the grievance arbitrated. On other
occasions, Allison states that Hurley would call and ask "Is
Bachman there?" She would say, "do you mean, Mr.
Bachman;" Hurley would say, yes; she would say that "No,
he isn't;" Hurley would say, thank you, and "he slung the
phone up in my ear." All of this indicating, in the
Examiner's opinion, that there was friction in Hurley's
relationship with the Union that commenced early in April
because he was strongly dissatisfied with the Union's
failure to arbitrate his grievance, a decision announced by
the Union on April 2. This friction reached a high point at
the meeting on April 10, as earlier described.
From April 2 on, we do not believe that there was any
lack of preciseness on Hurley's part in fulfilling his dues
obligations or not being certain whether he did or did not
mail in his dues at a particular time. The dues were a
condition of employment and most employees and
particularly an ex-steward crossing swords with the Union
would know this and would have no uncertainty whether or
not he had mailed in a dues check. We therefore believe
that there was no occasion after about April 3 when Hurley
did not know whether or not he had mailed in his dues and
that the occasion testified to by Allison occurred early in
the year in the first quarter as Hurley claims While it is true
that dues were a condition of employment at all times, it is
more likely, in our opinion, that Hurley's uncertainty about
mailing the check occurred prior to the time when the
antagonism between Hurley and the Union commenced.
Thereafter, in our view, Hurley would be and was
predictably careful that his dues were mailed and not
mislaid someplace in his truck or otherwise.
Allison testified that when a letter of resignation came to
12 Allison states that at the time there was a resignation file for
previous resignations, old resignations that maybe went back for several
years ago "
13 The only specific resignation that Allison could remember was that of
the office in April-May 1968 she wrote thereon "received"
and the date. She then placed the resignations in Bachman's
incoming mail basket; Bachman, she states , did not return
the resignations to her for filing but "kept them himself on
his desk . . . and kept [them] in a separate pile, for the time
being, during the strike." 12 Allison states that at the time of
the hearing she believes that there might be 50-55
resignations in the resignation file. She was unable to say
how many had been received during the stnke.13 At some
later period, apparently, because various employees who
had been tried by the Union had complained to the NLRB
and to the Union that they had resigned from the Union,
Respondent's counsel had Allison search the resignation
file. Some resignations of employees that had been tried by
the Union were found, and, in fact, Allison states that
resignation letters were found in all instances of the
aforementioned type of complaints (that the employee had
resigned but had nevertheless been tried). But no resigna-
tion of Hurley's was found.
In all the times Hurley spoke to her on the telephone,
Allison states that he made no reference to his resignation
until June 19, 1968 This was, of course, after Hurley had
received a letter from Secretary Shore, advising him that
charges had been filed against him and that his union trial
would be on June 25. According to Allison, Hurley, on June
19, first asked her if any of the officers were in. She said, no.
Hurley then proceeded to unburden himself to Allison. The
latter states that Hurley wanted to know who the Union
thinks it is bringing him to trial when he is not a member.
Hurley said that his resignation from the Union had been
attested to by the signature of a witness and that his only
obligation was to pay dues since a member could resign at
anytime and his foreman had so stated. Hurley said that
"Bachman and his union. .." had better not try to defame
him or he would sue and he had already checked with his
lawyer.
During the foregoing telephone conversation, Allison,
according to her testimony, made no comment to Hurley to
the effect that as far as the union records showed he was
still a member and that she had never seen any resignation
of Hurley's whether witnessed by someone else or not. This
in spite of the fact that Hurley's entire stated premise and
the reason he was castigating Bachman and the Union and
denouncing the Union for bringing him to trial was that
Hurley was not a union member because he had resigned
and that his resignation had been signed by a witness.
While Allison was not an officer of the Union, she could be
expected to make some comment on matters within her
knowledge if Hurley or some other person was using a false
premise in assailing her employer, the Union. For instance,
if Hurley was being tried or some action was being taken
against him because he was delinquent in dues and Hurley
telephoned and said he had paid his dues and had a witness
and that the Union had better not try to do anything, it
would be reasonable to expect that Allison would have said
that his dues had not been received if such was the fact.
And if no resignation of Hurley's had been received and if
Hall and she states that it was received during the strike Hall testified that
he resigned April 24 and that Hurley witnessed his resignation This is not
disputed
COMMUNICATIONS WORKERS OF AMERICA 1013
Allison had never seen a resignation from Hurley, it is not
unreasonable to expect that she would have stated that to
him on June 19 when he was stating that the Union had no
right to try him since he had resigned and was no longer a
member. This would have simply been a statement of fact
and would not have entailed any involvement in the legal
effect of a resignation as regards union jurisdiction, an issue
in which Allison would not be involved.
Following the telephone conversation with Hurley on
June 19, Allison, on the same date, wrote out a
memorandum of what Hurley had said, including his
statement about his resignation, and that he was not a
member, and his assertion, in effect, that the Union had no
right to try him. Allison gave this memorandum to Shore,
the union secretary, who had previously advised Hurley by
mail that he was to be tried and who, later, informed
Hurley, that he.had been tried and fined $500. According to
Allison, Shore read the memorandum and simply said,
"Mr. Hurley called?" This was a telephone call from
Hurley, was it, and not what he said on a visit to the office?]
Allison said "yes" and Shore walked away.
Gerhard, treasurer of the Union, like the other officers, is
also an employee of the Company He was strike director
for the Union in April-May 1968, 1 in 1, Prince, Georges
County.14 It would be our opinion that the strike director
was busy not only during the strike but also occupied with
preparatory work in the days immediately prior to the
strike. Gerhard testified that the job was quite time
consuming and he spent little time in the office and that
"this is where I spent my time, in the field."
The ordinary routine in the office, according to Gerhard,
with respect to checks, is that after they are received they
are placed on the president's desk, evidently by Allison.
The president, in turn, places any checks or money in the
office safe. Gerhard does not assert that there is, and it
would appear reasonable to assume that there is no fixed
rule or period that requires that the president immediately
place a check in the safe. It is conceivable, in our opinion,
that a check related to some correspondence or related to
some matter under consideration might not find its way to
the safe immediately. This is particularly true in the period
of the week of April 15, Monday, and thereafter, since this
is the period immediately before and during the strike. Not
infrequently the days just before the strike are occupied
either with last ditch settlement efforts or preparations for a
strike or both. The strike period itself is an equally busy
period. Both President Bachman and Allison, as well as
other officers, were very busy in April-May 1968. The
normal office routine was affected during this hectic period.
Bachman, for instance, in addition to being president of the
Local, was also on the union committee that was
negotiating with the Company. He was not in the office as
much as usual (and even "usual" was not that of a full-time
union officer but that of a full-time company employee who
also served as the union president). Bachman states that he
tried or did get to the office as much as possible during the
April-May period and often did so late at night but this in
itself is somewhat indicative of the rather abnormal
situation.
In any event, continuing with Gerhard's description of
office routine regarding checks, he states that he "is notified
of the fact [that checks are in the safe] [and] when the time
comes for banking I will remove all checks and moneys
from the safe." He then ascertains the allocation of the
checks and writes on a slip of paper that certain checks are
for dues or whatever. "Ordinarily," Gerhard states, the
foregoing depositing of funds takes place about the first of
the month and "I make my deposits on the first part of the
month."
While a first of the month procedure regarding checks is a
logical type of routine, it is apparent from Gerhard's
testimony that in the latter part of April, the routine was
somewhat deviated from. Gerhard states that on April 17,
Saturday, he removed all checks and moneys that were in
the office safe and deposited them in the bank.15 No
deposit was made in April after April 17. The next deposit
made by Gerhard was on May 8. On a piece of scrap paper
Gerhard had written down what the May 8 items of deposit
represented One of the items appearing is "cash dues
(Hurley) $17.55."
Although both Allison and Bachman testified that they
saw Hurley's dues check in the office, neither was able to fix
the date when the check was received. Gerhard does not
know when the check was received but the evidence
indicates that the check was one of the items he deposited
on May 8 Gerhard's testimony, that, on April 17, he had
removed all checks from the office safe and deposited them,
indicates that Hurley's check was not in the safe at that
time. There is an implication that Hurley's check was
received in the office after April 17 and before May 8. This
implication merits some modification in view of the fact
that there is no claim or indication that Hurley's dues
payment was late or delinquent.16 Thus, the implication is
more properly that the check was received between April 17
and April 30. However, the entire implication is dependent
upon the assumption that if Hurley's check had been
received on or before April 17, it would have been in the
safe on the 17th, having been placed there with reasonable
promptness after receipt in the office, pursuant to normal
office routine, and that Gerhard would have deposited it on
the 17th. Since the evidence shows that the officers and
others were very busy in this immediate prestrike and strike
period and that the officers were out of the office and that
normal office routine was affected, the implication
aforementioned, if accepted without qualification, would
exclude the possibility that some letters or checks might
have been on an officer's desk amid other letters or papers
for a few days and that papers may not have been filed or
checks placed in the safe as promptly as might have been
the case under more normal circumstances.17
In connection with the Local's office procedure, we have
previously seen that, although there was a resignation file,
during this period with which we are concerned, Bachman
kept current resignations on his desk ("He kept them
14 The sous of the Company in the pleadings of this case is in Upper month of the quarter, e g . April 30 for the second quarter
Marlboro, Maryland , which is in Prince George 's County IT Bachman states that he missed "very few days" when he did not drop
'T A bank statement confirms the date of deposit into the office, although there were occasions during the period when he
IS The Local's bylaws require that cash dues be paid quarterly in was occupied with negotiations day and night "bargaining through the
advance and received in the office no later than the 30th day of the first night"
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
himself on his desk") "in a separate file, for the time being,
during the strike." Although checks, of course, are not
resignations , there is a reasonable possibility that a check
might have been mislaid or mixed with other papers on a
desk so that a few days elapsed before it found its way to
the safe. It is a reasonable possibility, nothing more and not
dispositive.
Further evidence, with respect to at least the possibility of
error in the Local's internal office procedures during this
period, is furnished by the Levitt matter. Levitt (Leavitt)
was an employee who had resigned in the strike period and
before she was charged with violating the union rules or
constitution. She was nevertheless charged, tried by the
Union, and fined $375. Evidently pursuant to an unfair
labor practice charge, the Levitt matter came into the
jurisdiction of the Board and a settlement was arrived at.
Bachman was asked at the instant learning , after he had
said that Levitt had filed a charge "and after a thorough
investigation we [the Union] were forced to admit that we
had tried one [her] erroneously."
Q. And she [Levitt] was tried erroneously because
she was not in fact a member, is that correct?
A. Because she had written a letter of resignation
and it was somehow overlooked before she was charged
[for working during the strike] [Emphasis supplied.]
Bachman also testified that in addition to Levitt, 10 other
employees have charged before the Board that they were
erroneously fined because they had resigned from member-
ship and that these cases are still current.
Later in the hearing, Respondent recalled its witness,
Bachman , evidently because it wished to correct the
possible implication of Bachman's earlier testimony, above,
that one or more resignations had been "somehow
overlooked" and that employees had been tried and fined
because of such oversight.18 Respondent's witnesses had
also testified that, subsequently, by looking through the file
they found resignations from all complainants, except
Hurley, who had complained that they had been tried and
fined despite having resigned from the Union.
In his later appearance as a witness, Bachman stated that
employees who had resigned were tried and fined by the
Local because the International Union (CWA) had advised
the Local that the resignations were motivated by an
invalid reason, "for the purpose of crossing the picket line"
and returning to work during the strike, and that the
employees could therefore be tried and fined, expelled or
suspended, notwithstanding their resignations. The Local
then proceeded on this basis. Operating on such a premise,
therefore, that resignations had little or no significance, the
resignations may not all have received any particular
attention in the union office. Later, after the employees
involved had been tried and fined and were notified by the
is The Union tried and fined 55 employees after the strike Allison
stated that there were about 50-55 resignations on hand Bachman
estimated the number as 40 and, not unreasonably, Respondent in its brief
refers to "the forty to fifty-five persons who resigned during the strike" (the
precise time of the resignations is not too clear in the record)
19 The Levitt case, its factual situation and the union's position therein,
should have been fairly clear in the mind of the president since it is the one
case that , up to the time of hearing , had actually been settled between the
Board and the Union
20 In the course of his testimony , Sommers stated that " as far as we
knew at the time [of the trial] we had no resignation of Mr Hurley if we
Union, "they became incensed," according to Bachman,
and filed charges with the Board. Bachman states that the
Local then consulted its counsel and "we found that we
were wrong" in disregarding the resignations. Assuming
this to be true, it does not jibe very well with the witness'
earlier testimony that Levitt's resignation had been
"somehow overlooked" and that is why she was tried and
fined.19 In the Examiner's opinion when someone
"somehow overlooks" a resignation, it means that originally
and for a period of time the resignation was not seen
although it was present but presumably misplaced or
buried. This is not the same as disregarding a resignation
before you on the ground that the resignation has no effect
as far as the employee being subject to trial and fine.
One of the elements to be considered in this case is the
interest, the relationship, and the degrees thereof that
existed in the various witnesses. It is fairly apparent to the
Examiner that the witnesses on both sides are interested
witnesses. The two sides have a stake in convincing the trier
of fact one way or the other. This is not unusual and it
obviously does not follow that only a disinterested third
party can be relied on. We have seen Hurley's critical
attitude and his resentment toward the Union or its
administration on the matter of his grievance, and at the
April 10 meeting regarding the conduct of the presiding
officers and the policy decision of the Union, and the rather
abrasive telephone calls to the union office, including a
threat to sue the Union for fining him, and, of course, the
unabated and outstanding fine of $500 which could
scarcely engender anything but hostility to a person in
Hurley's position and with his views. We must give due
consideration to all these factors in evaluating his
credibility. By the same token the attitude or the opinion of
the Union and its officers and employees and members
regarding Hurley both in April, May, and June, 1968, and
thereafter, up to and including the hearing, must be
considered regarding their credibility.
The union attitude toward Hurley is revealed by the
evidence relating to the elements that the Union states were
taken into consideration in determining the amount of his
fine. Sommers, a steward, who was chairman of the trial
board, testified, in effect, that the members of the trial
board were familiar with Hurley's conduct and statements
and telephone calls both during the strike and immediately
prior thereto.20 Vice President Evans and others were aware
of Hurley's critical and belligerent attitude at the April 10
prestrike meeting. Bachman and other officers were aware
of Hurley's telephone calls to the office and of the
statements he had made to Allison about the Union and
about suing the Union. Bachman states that he may have
mentioned to the trial board some of these things such as
Hurley's statement to Allison that he had resigned. And an
had, it [the trial ] probably never would have gone any further with the
hearing" This is consistent with Bachman's original testimony that Levitt
was tried and fined because her resignation had been somehow overlooked
and that , when charges were filed, the Union settled the Levitt case since it
was found that Levitt had resigned However Bachman's latest testimony
was that employees were tried and fined regardless of resignations since,
until charges were later filed by individuals with the Board, the Union was
operating on the basis that resignations did not prevent the Union from
trying and fining members or resigned members The extent to which this
cloudy picture affects the entire resignation situation is to be considered
COMMUNICATIONS WORKERS OF AMERICA
excellent summary of how the Union and its officials
regarded Hurley is set forth in Respondent's brief: 21
The brief points out that various union witnesses had
descnbed Hurley in dealing with the Union as
"belligerent," "arrogant," and "very vocal." "He objected
loudly and frequently to the way things were being done.
He showed no regret at his action, and in effect, dared the
trial board to fine him. He had threatened to sue the Union
if it disciplined him. He was asking for it and he got it. Mr.
Hurley's attitude was particularly disturbing because of his
prior work as a union steward. People who had previously
regarded him as a union representative now saw him
crossing picket lines and talking down the leadership. The
bad example he gave to the rank and file member . . . is
unforgiveable."
The foregoing explanation of how the Union and its
leaders and associates regarded Hurley appears to be a
reasonably accurate portrayal. Our interest, at this point, in
view of the factual issue before us regarding the asserted
resignation of Hurley, is whether the "unforgiveable"
conduct of Hurley and the feeling that "He was asking for it
and he got it" affected the accuracy of the testimony of
union witnesses . Was Hurley' s resignation received and
tossed in a wastebasket because it was Hurley's; did his
resignation come to the office and was it buried and lost
undesignedly due to the hectic period in the office; or was
no resignation of Hurley's ever seen by a union officer or
employee, as they testified, with the clear implication that
the resignation had never been sent.
Equally challenging questions arise with respect to
Hurley's and Hall's corroborating testimony. Respondent,
in its brief, after describing what it regards as the salient
evidence, epitomizes Respondent's contentions as follows:
The most reasonable conclusion to be reached from the
evidence is that John J. Hurley called Gerry Allison in
mid-April to inquire about his dues. He did not inquire
about his resignation because he hadn't sent it. He sent
the dues check later that month and before May 8, 1968,
but not the letter of resignation. When he received the
union's notification of tnal board proceedings on June
17, 1968, he consulted a lawyer, who advised him the
Union couldn't fine him if he were not a member. He
knew his friend Archie Hall had resigned on April 24, so
he lined up Archie as a witness . He then called the
Union office on June 19, 1968 and for the first time
announced that he had resigned and had a witness.
Further Findings and Conclusions
The evidence of Hurley's critical attitude toward the
Union and its leadership in early April 1968, with respect to
handling of his grievance, and particularly the events at the
April 10 union meeting when Hurley was outstandingly
belligerent in criticizing the lack of candor and honesty of
21 In the cited portion of the brief, Respondent was setting forth the
factors that entered into the determination of the amount of Hurley's fine
and why the fine was reasonable under the circumstances While we are
not at this point discussing the reasonableness of the fine, we are interested
in the feeling of the Union and its officials and members toward Hurley.
The ingredients or basis of this feeling did not appear for the first time at
the trial in June but they existed from early April up to and including June,
with increasingly obnoxious conduct on Hurley's part from the standpoint
of the Union The trial and the fine focused on all these elements It is
1015
Vice President Evans in answering member's questions and
Hurley was equally belligerent in criticizing the CWA
policy decision regarding the strike and in criticizing the
Local's leadership in not, in Hurley's view, supporting the
membership in opposition to the said policy, and his
remark to Evans when the latter said, in effect, that the
officer's primary obligation was to support the CWA
International, that "you have just lost a member," is
significant. We regard it as likely and as believable that a
person such as Hurley would thereafter resign from the
Union. Whether resignation from an organization is the
most intelligent form of protest, we need not decide. The
fact is that it is not an uncommon method of expressing
indignation and protest. People resign from clubs,
churches, and other organizations, and they "resign" as
subscribers of newspapers and magazines as an expression
of protest or strong disagreement.
Hurley testified that he had written out his resignation on
April 12, Friday, and had it witnessed by Hall, who
corroborates him. In view of the circumstances described
earlier in the decision and summarized in the preceding
paragraph, why is it not credible that he did so. A strong
motivation to resign did exist. Perhaps it may be said that
despite the motivation or desire to resign, he did not know
that he could resign or that a resignation was of any
importance one way or the other. Hurley had been a
steward and an acting chief steward.22 Basic to a steward's
duties is a knowledge of and familiarity with the union-
company contract. Stewards also, not infrequently answer
inquiries from employees about rights and obligations with
respect to both the Company and the Union. Stewards, and
probably every other union member, know that under
union rules the Union can discipline and fine members and
that a resigned member, a nonmember, is in a different
position than a member. Moreover, about 40-50 rank-and-
file members knew that they could resign and they
considered it an important enough act so that they actually
did resign. Union members are generally aware, and a
steward certainly is, that a member does not cross a picket
line during a strike and that such action violates union laws
and is subject to discipline. All or many employees who
crossed the picket line had resigned from the Union in
order to, among other possible reasons, protect themselves
against union discipline and this was the contention or view
of both the CWA and the Local. Hurley certainly knew this
as well or better than others. In our opinion, Hurley knew
he could resign and that a resignation had some
significance as to his relationship to the Union. We
therefore find it credible that he did in fact write out his
resignation on April 12.
But what of the testimony of Respondent's witness that
they never received or saw a resignation from Hurley.
Assuming, arguendo, that this is the fact, the direct
doubtful that the feeling diminished after the trial since subsequently
Hurley filed the instant charge against the Union and involved the Union
and its officials in this proceeding where many of them were witnesses
called by the Union
22 Under the Union's bylaws the chief steward and, presumably the
acting chief steward , supervises other stewards in carrying out their duties
as representatives of the Union in dealing with members, nonmembers, and
the Company
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusion is limited to (a) the resignation was not mailed;
and (b) if mailed, it was not received. Nonreceipt or
nonappearance of the resignation does not necessarily
establish that Hurley did not write out his resignation and it
is only by implication that an inference that the resignation
was never written can be drawn from the alleged nonreceipt
or nonappearance. Overall the distinction is not too
important but we are analyzing the evidence seriatim The
more individual elements can be resolved in one direction
or the other, the more we may be helped in resolving the
major elements of conflict although major elements clearly
resolved may overturn some tentative findings on lesser
points. In short, if the Examiner is convinced that Hurley
never sent in a resignation, the fact that he had the
motivation and impulse to resign and understood the
significance and importance of resigning may be unimpor-
tant. But if there is a doubtful or close evidentiary issue on a
major point in dispute, then the individual segments
surrounding the major issue may be important in reaching a
conclusion.
Up to this point, the Examiner finds Hurley's testimony
credible. He had the motive to resign, he understood that he
could resign and that it was a matter of importance. We
credit Hurley and Hall that Hurley wrote out his
resignation and that Hall signed as a witness. The next
questions are: did Hurley mail his resignation and did it
come to the union office.
In view of the circumstances previously described, we
perceive no reasonable ground for doubting that he mailed
the resignation. He appeared to be a rational and intelligent
person and, in the circumstances, mailing the resignation is
the most likely thing that would have occurred and he and
Hall both testified to the mailing in the post office.
We have described earlier the somewhat elaborate steps
that Hurley and Hall testified to regarding the letter. It is
apparent that these steps were geared to establishing or to
being able to prove the contents of the envelope and its
mailing to the Union. Both witnesses testified that the
envelope contained the resignation, witnessed by Hall's
signature, and the dues check, and that the envelope was
sealed and initialed and mailed with the seal undisturbed.
Why was not the letter sent by certified or registered mail
in lieu of the elaborate method used? The Examiner does
not know the answer and neither of the two witnesses was
asked the question or gave the answer. Respondent would
presumably answer that the reason was because the entire
resignation matter, including its writing and mailing, never
happened.
What would have been the foreseeable advantage of a
registered letter! It would have established a date and it
would have established receipt of an envelope by the
Union. The registry would not establish the content of the
envelope. The latter might have contained a resignation
and a check; or a blank piece of paper; or a check alone; or
a copy of the constitution; or nothing. And the sender
could say the envelope contained a resignation and a check
and the recipient could deny it, and either party might be
speaking truthfully or otherwise.
23 "Mr Hurley wanted to know who the Union thinks they are bringing
him to trial when he is not now a member He had a witness sign his
resignation Also his supervisor told him he could resign anytime he
As we have observed previously, the focus of what Hurley
and Hall say they did was on establishing the contents of
the envelope and on establishing that that letter and its
contents were mailed to the Union. Why was not Hurley
equally concerned about establishing the time and the
receipt of the letter, elements which could have been proved
by registry? Again, the Examiner does not know. However,
it may well be that the time element did not appear to be
critical and that the time and the receipt could be
sufficiently taken care of by reason of the fact that the
envelope contained a dues check. Payees usually cash
checks and usually within a reasonable time. If a letter and
check are mailed and then the check is cashed, it generally
tends to establish that what was mailed was received. The
likelihood of a dues check not being cashed was not great.
Although the resignation and not Hurley's April 12 dues
check is the issue in this case, the check and its date of
deposit and related circumstances are in the record as
relevant to certain contentions. In the Examiner's opinion
the evidence warrants the conclusion that the check was in
the union office at least in the period of April 18 to April 30.
No witness could remember when the check first came to
the office. We do not regard the apparent fact that the
check was not in the office safe on April 17 as dispositive of
the possibility that the check was received in the office
April 15 (Monday), or the 16th or 17th. All mail, including
checks, after being opened by Allison, was placed on
Bachman's desk. Until Bachman went through the items on
his desk they went nowhere, either to the safe or other
destination. Resignations, for instance, remained in a pile
on Bachman's desk, not for a day or two but throughout the
strike. During this week of April 15, just before and during
the strike, the routine of the office procedure was
interrupted. Everyone was very busy, particularly Bach-
man, who was president of the Local and a member of the
union committee negotiating with the Company. We
believe it not unlikely that various items, such as a check,
may not have found their way to the office safe for several
days during this period.
On the main issue of Hurley's resignation, we turn now to
his telephone call to the union office on June 19 when he
spoke to Allison. Allison, on the 19th, after the call, wrote a
memorandum of what Hurley had said.23 Respondent's
interpretation of this call and Respondent's contention as
to its significance is that this call was made shortly after and
because of the letter, dated June 14, that the Union had sent
to Hurley, informing him of charges filed against him and
of the date of his trial. We agree up to this point.
Respondent goes on to contend that when Hurley received
the letter, "he consulted a lawyer who advised him the
Union couldn't fine him if he were not a member. He knew
his friend Archie Hall had resigned on April 24, so he lined
up Archie as a witness. He then called the union office on
June 19, 1965 and for the first time announced that he had
resigned and had a witness."
The Examiner does not agree that the foregoing is the
most reasonable or most plausible interpretation of either
the telephone call or the evidence in the record.
wanted to as long as he paid dues So that Bachman and his union had
better not try to defame his name or he would sue the whole bunch of
them He has already checked with his lawyer"
COMMUNICATIONS WORKERS OF AMERICA 1017
All Respondent 's witnesses on the matter, such as Allison
and Bachman , agree that at no time did they ever see a
resignation of Hurley and at no time did he ever produce or
offer to produce a resignation , either in April or May, or in
June or at any other time. Instead, so Respondent
contends , on June 17-19, (Monday-Wednesday) when
Hurley received the June 14 (Friday ) union letter notifying
him that he was to be tried for violating the constitution by
having crossed the picket line and working during the
strike, it suddenly dawned on him , for the first time, that he
indeed had violated the constitution and that as a member
of the Union he could be and was going to be tried and
probably fined for such violation . This possibility , presum-
ably, under Respondent 's theory, had never previously
occurred to ex-steward and ex-acting chief steward Hurley.
Dismayed and surprised by the prospect of being tried and
fined , Hurley consulted a lawyer The lawyer presumably
revealed to Hurley something that the latter had never
known, namely , that while the Union could try and fine a
member, it could not do so as to a nonmember . A further
fact was also revealed by the lawyer , to wit, that a member,
who resigned, was no longer a member. Hurley's presumed
ignorance of any of the foregoing until he had consulted a
lawyer in June is the more striking in view of the fact that
40-50 rank -and-file members, men and women, who had
never been stewards , had sent in their resignations to
remove themselves from union disciplinary power so that
when they worked during the strike they would not be
subject to union trial and fine.24
Moreover , on April 24 , the first day when Hurley and his
friend Hall went to work during the strike, it is
uncontroverted that Hall took care to write out his
resignation and had it witnessed by Hurley. If Hurley,
unlike other employees , had not known that he could resign
or that a resignation was a matter of importance to a
member who was going to work during the strike , he surely
would have known it by April 24 when his friend Hall
resigned and Hurley witnessed the resignation . Yet Hurley
did nothing regarding his own resignation either at this time
or at any other time, according to Respondent.
It cannot be said that former steward Hurley did not
know that by going to work during the strike, he was
violating a cardinal union rule and constitutional provision.
Such knowledge is basic to unionism and its adherents,
particularly a steward . Nor can it be said that he may have
expected that he , unlike others, would be treated with
benevolence by the Union for such a violation. Just the
opposite is true. As a former steward and union leader
Hurley's conduct was particularly obnoxious and indeed
dangerous in the eyes of the Union , a readily perceivable
fact. Hurley was also fully aware that he had strongly and
openly criticized the union leadership and union policies
both at the prestrike meeting on April 10 , and on other
occasions . Going to work during the strike would be the last
24 Evidently, the resignations were sent in April or May and before any
charges or trials Bachman, on one occasion, testified that the Union tried
and fined employees who had resigned because it was the International's
theory and policy that the resignations had been sent in with the intent that
the individual could then work during the strike without being subject to
union trial and discipline The International reportedly held that
resignations with such intent were invalid and did not bar trial and
punishment and the Local proceeded on this basis
straw and Hurley knew this as well as anyone else. As
Respondent states in its brief, Hurley was asking for it.
And, in our opinion, he was aware of the situation , and the
importance of resignation in his case was outstandingly
apparent. Yet Respondent contends that neither on April
12 or 24 or at any time did Hurley resign. Instead,
according to Respondent, Hurley, after being notified that
charges had been filed against him for working during the
strike and that he was to be tried, on June 19 simply told the
Union that he had resigned . All this in the apparent belief
that an asserted resignation , even at that point, removed
him from union jurisdiction. We find Respondent's
interpretation to be unreasonable and unconvincing in the
circumstances described above.
In the Examiner's opinion, the most reasonable and
plausible interpretation of events, including the June 19
telephone call from Hurley as reported by Allison, is as
follows: Upon receipt of notification that he was to be tried
for working during the strike, Hurley was indignant
because he had resigned from the Union on April 12. In his
June 19 telephone call to the Union he therefore expressed
his indignation and referred to the fact that he had resigned
and that a witness had witnessed his resignation.25 His
assertion that he had consulted his supervisor and had been
told that an employee member could resign from the Union
at any time may mean one of two things. Originally, before
resigning on April 12, he may have checked with the
supervisor to confirm or to be sure whether he could resign
at that time without jeopardizing his job. The supervisor
said that a member could resign at any time as long as he
continues to pay the amount of dues. Or, the reference in
the telephone conversation to the fact that he had consulted
his supervisor and had been told that he could resign at any
time may mean that when Hurley received the June 14
letter, notifying him of his coming trial, he went to his
supervisor. He told the latter that he had resigned from the
Union previously and now he had been notified that he was
to be tried for working during the strike. We can imagine a
conversation along these lines: Hurley: Am I wrong in my
belief that as a resigned member I was not and am not
subject to union jurisdiction for working during the strike,
because I have just received notice from the Union that I
am to be tried on June 25?; is there anything that prohibits
a member from resigning? Supervisor: No, you are not
wrong; a member can resign at any time as long as he
fulfills the obligation to continue to pay an amount
equivalent to the dues.
The final reference in the June 19 telephone call was
Hurley's threat to sue the Union. Hurley added that he had
already checked with his lawyer on this aspect, i.e. his right
to sue the Union if it sought to "deframe" Hurley,
presumable, at, or by, the upcoming trial.26
In accordance with his analysis of the evidence, the
Examiner concludes that Hurley did write out and mail his
2', The most reasonable interpretation of why Hurley did not resign on
April 24 with his friend Hall, when they both went to work for the first
time during the strike, was because he had resigned previously, on April 12
26 Whether Hurley had consulted a lawyer or not is unimportant
People frequently mention that they have consulted lawyers in situations
where they feel strongly and wish to impress the opposite party regarding
the strength of their position
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resignation from the Union on April 12, 1968. Although the
United States mail is not a infallible institution, we are not
persuaded that the presumption of delivery has been
overcome in this case. We do not know but it is our opinion
on all the evidence that the resignation and the dues check
were delivered to the union office within 2 or 3 days after
they were mailed on Friday, April 12, 1968. In our opinion,
the resignation was thereupon effective. It is unnecessary to
decide what happened to the resignation after delivery to
the office. The resignation was brief, "I resign from
membership in Local 2108, Communication Workers of
America." The record does not show whether it was written
on a full page of writing paper or on a half size piece of
paper or whatever. It is possible that it was not seen in the
envelope and that only the check was seen. In short, it may
have been inadvertently overlooked or lost or it may have
been ignored or destroyed deliberately. The Examiner does
not know.
Since we have concluded that Hurley effectively resigned
from the Union prior to his return to work during the strike
and prior to the filing of union charges, trial, conviction,
and fine, we find that he was not a member of the Union
and was not lawfully subject to charges, trial, conviction,
and fine.27
The foregoing conclusion, in our opinion, removes from
our consideration the interesting and challenging question
of the reasonableness of the fine as well as Respondent's
additional contention that reasonableness of a fine is not
properly cognizable by the Board.28 Neither the amount
nor the reasonableness of the fine, in our opinion, need be
discussed in the instant case where the issue is in substance
whether any fine of a nonmember is legally defensible
against the allegation that the imposition of the fine
constituted a violation of Section 8(b)(1) (A) of the Act.
The amount of the particular fine, in our opinion, is an
incidental and nonessential circumstance.
The Allis-Chalmers decision 29 in dealing with the
imposition of reasonable union fines and their enforcement
or collection by court action, is abundantly clear that the
Court is speaking of union rights and union power with
respect to union members. We deem this to be so evident
from numerous statements by the Court in its decision and
its citation of legislative history on the subject of internal
union affairs involving union and member that no
quotations are necessary. The Court's references to
reasonable fines therefore are to be viewed in situations
involving a union and its members. Indeed there is
indication that "reasonableness" of fines involving mem-
bers does not enter the picture if the discipline is limited to
fines or fines and expulsion and stops short of court
enforcement.30 Thus, the Court had no problem in
27 After his resignation from membership, Hurley's obligation to the
Union, which he fulfilled, was, under the contract, to pay "an amount
equal to the periodic union dues" as a condition of employment with the
Company
28 The Examiner has had occasion in another case (Booster Lodge No
405, International Association of Machinists and Aerospace Workers,
AFL-CIO (The Boeing Company), TXI3-737-68) to express his view on
the standards of a reasonable fine To what extent the instant situation of a
former steward and union leader, who allegedly not only worked during
the strike but also urged others to do likewise (assuming that the individual
former steward remained a member at all times), would or should affect
the formula set forth in the cited case, we need not here state
concluding that under the proviso of Section 8(b)(1)(A)
"the rule in the UAW constitution governing fines is valid
and the fines themselves and expulsion for nonpayment
would not be an unfair labor practice." After "assuming"
but not deciding "that the proviso cannot also be read to
authorize court enforcement of fines," the Court then goes
on to deal with the court enforcement of fines and in that
connection remarks that if there was any concern about the
collection of unreasonably large fines "this would not
justify reading the Act also to bar court enforcement of
reasonable fines." 31 The Court also observed that notifica-
tion by the Union in the case to strikebreakers that they
might be fined $100 a day was not accompanied by
notification or inference "that court enforcement would be
the means of collection. Therefore, at least under the
proviso, if not the body of Section 8(b)(1), such notification
would not be an unfair labor practice. It is not argued that
the fines for which court enforcement was actually sought
was unreasonably large."32
Although arguing that Hurley had not resigned from the
Union and that he was therefore subject to union discipline,
Respondent also addresses itself to the possibility that it
might be found that Hurley had effectively resigned from
membership. Respondent's position regarding the last
mentioned contingency has the virtue of simplicity
although, in the Examiner's opinion, it lacks the more
important legal virtue of cogency. Thus, Respondent states
that "Mr. Hurley's case carries within itself the seeds of its
own destruction. If he proves his point [that he resigned ] he
proves himself right out of court," or, in effect, if Hurley
wins, he loses. The reason for this, according to Respon-
dent, is that "In order to be subject to union discipline, the
employee must be a member of the Union" and if Hurley
resigned "the fine is unenforceable and cannot constitute
restraint or coercion"; "If there is no contract [of
membership ]33 there is no enforceable right under the
contract [of membership] and no legal consequences of an
attempt to enforce this non-right."
We agree that Hurley, having resigned from the Union,
ceased to be subject to union discipline and that the Union
had no legal right, either under the contract theory of the
relationship of a member to a union or under any other
theory, to try and to fine him and that the Union has no
legal basis on which it can collect or enforce any fine
imposed.34 However, the fact that the Union went ahead
and tried and fined Hurley without legal justification is
scarcely dispositive of the issue of whether such action
constituted restraint and coercion of employee Hurley in
the exercise of his rights under Section 7 of the Act to
29 N L R B v Allis-Chalmers Manufacturing Co, 388 U S 175
30 No court enforcement of the fine had been instituted in the instant
case as of the time of hearing
1 388 U S at 192-193,
32 388 U S at 192, fn 30
33 Respondent had prefaced the quoted sentence by referring to the
contract of membership theory between a union and a member , as referred
to in Allis-Chalmer
34 These facts, however, would not obviate apprehension on Hurley's
part that at any time after the fine was imposed there was nothing to
prevent the Union from seeking court enforcement of the fine, with the
attendant stress and expense to Hurley if he was to defend himself in court.
COMMUNICATIONS WORKERS OF AMERICA 1019
engage in or to refrain from engaging in union activity by
working during a strike.35 If lack of legal justification for an
action, the fining of Hurley, and the inability to legally
enforce the action taken, the collection of the fine,
constitutes a defense to the allegation that the action taken
constitutes restraint and coercion, a rather remarkable
formula has been evolved. For one thing, the Union has at
no time admitted the illegality of the fine and has taken just
the opposite position. Presumably, it would take the same
position in a court action to enforce the fine. However, if
after a trial, Hurley prevailed, then Respondent would
exculpate itself , under the theory propounded herein, from
all responsibility for restraint and coercion on the ground
that the fine was illegal and unenforceable.
Assume that an employer notifies an employee by letter
on June 14 that the employer has received word that the
employee has joined a union ; as the employee knew and as
he is again advised in the letter, the employer operates
under a policy that no employee may belong to a union if
he wishes to continue as an employee; the letter advises the
employee therefore that an investigation of the charge of
having joined a union will be conducted in the personnel
office on June 25; the investigation on June 25 satisfies the
employer that the employee had in fact joined a union and
the employer thereafter notifies the employee of this fact
and of the fact that it was decided on June 25 that the
employee must pay a fine of $500. Nothing further is done
by either party but the employee files an unfair labor
practice charge alleging that the employer has restrained
and coerced him in the exercise of his Section 7 rights in
violation of Section 8(a)(1) of the Act. The employer
defends on the ground that his actions regarding the
employee had all been without legal justification and
therefore did not constitute restraint or coercion. Also, the
employer points out that the possibility or implied threat of
further action to collect the fine by payroll deduction or
other action or the possibility of discharge had never, or
had not as yet, materialized and, in any event, such actions
would be without legal justification and were nonenforcea-
ble. By the same token, a union picket who, with a 2 x 4
board in his hand, tells a strikebreaker that he is going to hit
him over the head might seek to defend against a charge of
restraint and coercion on the ground that his remarks were
without legal justification and therefore unenforceable and
the strikebreaker had held his hand up to defect any blow
and had called a policeman for protection and was never
struck, all proving or ultimately proving after litigation that
the picket's statement was without legal justification and
unenforceable and that he never actually hit the strike-
breaker and therefore eliminating any element of restraint
or coercion in the picket's statement. And presumably,
under the theory advanced by Respondent, we might see
the rebirth of yellow dog contracts wherein an employee
contracts that he will not join a union while in the
employer's employ. Assume that an employee is given such
a contract to sign and he signs it. Thereafter, while in the
employer's employ, the employee files a 8(a)(1) charge. The
employer defends on the ground that the contract is
unenforceable and therefore there was and is no restraint
and coercion. Presumably, this would be a valid defense
under the theory propounded herein by Respondent.
The words "restrain or coerce" have been in the Act since
its original enactment in 1935 and it has been illegal since
that time to restrain or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act. Although the
proscription against restraint and coercion of employees
was limited to employers36 until 1947 when it was also
extended to unfons,37 there can be little doubt that no
words in the statute have been applied more and
interpreted more than "restraint and coercion" of employ-
ees in the exercise of their statutory rights. Aside from the
more obvious and direct forms of restraint and coercion of
employees, restraint and coercion have been found where
the subjective ease , tranquility, and freedom from appre-
hension of employees in the exercise of their Section 7
rights could be reasonably said to have been affected. Thus,
creating in employees an impression of surveillance of their
protected rights and activities by a statement by a
supervisor that he knew who had joined the Union has been
held to constitute restraint and coercion. Restraint and
coercion of employees has been found because of the locus
or atmosphere in which questions, noncoercive in them-
selves, have been put to employees about union sentiments
or activities. Subtle but real nuances in speeches have been
found to constitute restraint and coercion. In short, the
Board and the courts have found restraint and coercion of
employees whenever the English language definition of
restraint and coercion exists with respect to employee rights
under Section 7. Where the Board and the courts have
differed, they have not differed basically on the principle
that direct or indirect restraint and coercion are illegal, but,
in particular cases, they may have interpreted a statement
or action in a different way and hence have held the
statement or action regarding employees to be coercive or
not under the ordinary meaning of the terms coercion or
restraint. And, as far as appears, restraint and coercion of
employees exist regardless of whether the restraint or
coercion was legally unjustified or regardless of whether the
employee knew or was assumed to know that some action
of restraint and coercion could not legally be enforced.
The "inherent imprecision" that the majority of the Court
in Allis-Chambers perceived in the words "restrain or
coerce," despite more than 30 years of Board and court
interpretation of the words under the Act, can be ascribed
to the particular context of that case. The Court, as we have
previously stated, was dealing with what it viewed as the
internal union situation involving a union and its members
and the applicability of the proscription against restraint or
coercion in that internal relationship. The Court emphasiz-
ed that there was no evidence "that any of the fined
employees enjoyed other than full union membership" and
refrained from expressing a view on members whose
membership was less than full.38 In the instant case,
Hurley, after his resignation, before and when he was tried
35 Sec 8(b)(1)(A) 1s "Whether these prohibitions would apply if the locals had imposed
36 Sec 8(l) of the Act (Wagner Act) and Sec 8(a)(1) of the Act , as fines on members whose membership was in fact limited to the obligations
amended , "To interfere with , restrain , or coerce employees of paying monthly dues is a question not before us and upon which we
37 Sec 8(b)(1)(A) intimate no view " 388 U S at 197 (Emphasis supplied)
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and fined , was not a member , full or otherwise , and his
obligation was not that of paying dues but of paying "an
amount equal to the periodic union dues ." 39 It would
therefore follow that whatever problem the Court perceived
as to "restraint or coercion" was in connection with the
internal relationship between a union and its full members.
Whether this problem would extend to less than full
members was not decided and there would appear to be no
basis for extending the problem into dealings between a
union and employee nonmembers.
In Allis-Chalmers, the Court , in the course of focusing
upon the point that the internal relationship of union and
member was in a particular enclave where the general
proscription of restraint or coercion did not apply, referred
to various parts of the legislative history of the Act Thus,
the Court said:
The following statement of Senator Taft had no
reference to the conduct of a union vis-a-vis a member
who crossed the union's picket line.. .. [but, did apply
to nonmembers]
[Senator Taft 's statement about Section 8(b)(1)(A) is
then quoted , including his remark that under the
Section the Board can say to a Union ". you cannot,
by threat of force or threat of economic reprisal,
prevent them [nonmembers ] from exercising their right
to work."40
The Court goes on to refer to another statement of the
Senator, noting that it also referred "to coercion of
nonmembers" and not members and that the Senator in
connection with restraint and coercion "distinguished
members from nonmembers. ."41 Again , the Court
states.
Examples were give in [Congressional ] debate of threats
by unions to double the dues of employees who waited
until later to loin . It is suggested that this is no less
within the ambit of internal union affairs than the fines
imposed in the present case. But the significant
distinction is that the cited examples necessarily
concern threats against nonmembers designed to coerce
them. ...[In the exercise of their rights under Sec. 7142
It is the Examiner 's opinion that by trying and fining
Hurley, a nonmember , Respondent restrained and coerced
him in the exercise of his rights under Section 7 of the Act
and thereby violated Section 8(b) (1)(A) of the Act. The
trial and fine were inhibitory of employee rights under
Section 7 . The trial and fine of a nonmember , whether
formerly a member or not, tends to inhibit his decisions and
conduct as protected under Section 7. Indeed, the purpose
of a fine is to deter and restrain the person fined. Fines are
usually , if not always, imposed after the commission of the
conduct that is deemed violative of a rule or regulation and
the purpose is to deter and restrain the person fined, as well
as others, from future conduct of the same or similar
nature. It was not beyond the realm of possibility or
probability that the Union would engage in another strike
39 This service charge type of obligation is presumably based on a
qualified recognition of a union 's basic argument for a union shop clause
in a contract , to wit, that nonmembers are free riders enjoying the benefits
gained by the Union and its dues paying members and that it is unfair that
such free riding should exist
40 388 U S at 189, In 25
41 Idem
against the Company at some future time . An individual
who has been fined and who believes that the action was
without legal justification can have no certainty of the
outcome . If the instant case is fully litigated it may be a
year or more before ultimate disposition . Fines are
generally imposed with an intent by the organization
imposing the fine that the fine be paid or that appropriate
steps will ultimately be taken to collect the fine . The Court,
in Allis-Chalmers, apparently viewed court enforcement of
union fines as a normal and well established practice since
"such enforcement was known as early as 1867." (388 U.S.
at 182, fn. 9) Some persons and some employees will pay
fines, although they consider the fines unmerited or
unlawful , rather than become involved in litigation. The
prospect of the measures that an employee may be forced to
resort to in order to vindicate his position against an
unlawful fine is in itself coercive . The employee has no
assurance and certainly no certainty that collection and
enforcement steps will not be taken . In view of Allis-
Chalmers, the possibility of resort to court to collect a union
fine cannot be discounted . How various contentions or
defenses will fare in a particular state court is a matter of
conjecture . Moreover , a fine itself , for violating union rules
and constitution, stigmatizes the employee as an individual
who has violated asserted obligations of membership and as
one who has not fulfilled his obligations . This is coercive
when the employee in fact was not a member and hence
violated no duty of membership by exercising his right
under Section 7 to work during a strike.43
CONCLUSIONS OF LAW
Respondent , by trying and fining employee Hurley, a
nonmember of Respondent , exercising his rights under
Section 7 of the Act, has restrained and coerced and is
restraining and coercing the employee in the exercise of his
rights, guaranteed in Section 7 of the Act, in violation of
Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found that Respondent has committed an unfair
labor practice , it will be recommended that Respondent
cease and desist from such conduct and that Respondent
rescind the trial conviction and fine of employee Hurley.
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case , the Examiner makes
the following:
RECOMMENDED ORDER
Respondent, Communication Workers of America, Local
2108, AFL-CIO, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Restraining or coercing John J. Hurley or other
42 388 U S at 186, fn 14,
41 The instant union publicized a list of 55 employees who had been
tried and fined , with the amounts and including Hurley, and with the
comment , "The above names represent 55 of the 1641 members who were
not willing to support their brothers and sisters in fighting for better
benefits and wages which they deserved and got "
COMMUNICATIONS WORKERS OF AMERICA 1021
employees employed at the Upper Marlboro, Maryland,
Dial Center, who are not members of Respondent, whether
former members of Respondent or otherwise, in the
exercise of his or their rights under Section 7 of the Act to
engage in or not to engage in union or concerted activities,
in violation of Section 8(b)(1)(A) of the Act, by trying and
fining said Hurley for violation of Respondent's rules and
constitution.
(b) In any like or related manner restraining or coercing
employees in the exercise of their Section 7 rights in
violation of Section 8(b)(1)(A) of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Rescind the trial conviction and fine of employee
John J. Hurley and notify the latter, in writing, that it has
taken such action.
(b) Post at its office and regular place of meetings and at
the Upper Marlboro, Maryland, Dial Center of The
Chesapeake & Potomac Telephone Company of Maryland,
Inc., if the Company is willing, copies of the attached notice
marked "Appendix. [Omitted from publication.]"44 Copies
of said notice, on forms provided by the Regional Director,
Region 5, of the Board, after being signed by an authorized
representative, shall be posted at the aforementioned
locations, in conspicuous places, including all places where
notices to employees are customarily posted, and reasona-
ble steps shall be taken to insure that said notices are not
altered, defaced, or covered by other material.
(c) Notify said Regional Director, in writing, within 20
days of receipt of the Decision, what steps it has taken to
comply therewith.45
44 In the event this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words, "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order be enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order "
41 In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "