Food & Commercial Workers Local 506 (Facciola Meat)

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1459 (N.L.R.B. 1985)

FOOD & COMMERCIAL WORKERS LOCAL 506 (FACCIOLA MEAT)
United Food and Commercial Workers Union Local
No. 506 , United Food and Commercial Workers
International Union (Facciola Meat Company,
et al.) and John E. Tate. Case 32-CB-838
29 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 8 January 1982 Administrative Law Judge
Timothy D. Nelson issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief, and the Respondent filed a response
to exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The facts of this case are undisputed. i The Re-
spondent's executive board adopted a membership
resolution on 29 January 1980,2 which was then
approved by the Respondent's membership, and
which provided, inter alia, that any member of the
Respondent who "fail[ed] to respect any picket line
established by this Local Union or any other bona-
fide picket lines established by any other Unions,
shall be subject to a fine of $750.00 for each viola-
tion, and . . . possible suspension or expulsion from
the Local Union . . . ." The resolution further de-
clared with respect to any employee seeking to
resign that "his resignation shall be of no force and
effect during any period in which economic action
against the employee's current employer is immi-
nent or actually in progress."3 On 30 July, the Re-
spondent gave notice to Facciola Meat Company
and other employer-members of the Central Cali-
fornia Meat Packers Association, which is party to
a collective-bargaining agreement with the Re-
spondent, that the Respondent would be on strike
against those employers beginning 3 August and
such a strike did commence on that date. Mean-
while, the Respondent's agents engaged in three
acts that the complaint alleges as violations of Sec-
tion 8(b)(1)(A) of the Act.
On 31 July an employee of Facciola Meat Com-
pany, Richard Woodruff, sought to resign as a
member of the Respondent, and the Respondent's
agent Thomas Baker refused to allow him to do so,
citing the above-described membership resolution.
' The amended complaint and the Respondent's answer were amended
by stipulation on the record at the hearing before the administrative law
judge
s All dates are in 1980, unless otherwise indicated
The resolution also restricted withdrawals and transfers, but those as-
pects of the resolution are not at issue here
1459
On 1 August Baker and another of the Respond-
ent's agents, Tony Bozzo, addressed a membership
meeting attended by substantially all of the em-
ployees of the employer-members of the Associa-
tion. At this meeting, the Respondent's agents re-
cited the text of the membership resolution and in-
formed the employees that the Respondent would
not accept or recognize resignations, under the
terms of the resolution. The Respondent's agents
further stated that the provisions of the resolution
regarding fines would be fully enforced if any em-
ployee crossed or worked behind the Respondent's
picket line.
The judge issued his decision before our recent
decisions in Pattern Makers (Rockford-Beloit), 265
NLRB 1332 (1982), enfd. 115 LRRM 2264 (7th
Cir. 1983), and Machinists Local 1414 (Neufeld
Porsche-Audi), 270 NLRB 1330 (1984). In Rockford-
Beloit, we found a union rule invalid that, like the
membership resolution here, prohibited resignations
during a strike or when one was imminent. In Neu-
feld Porsche-Audi, at 1330, we went further and
held that "any restrictions placed by a union on its
members' right to resign . . . are unlawful."4
Accordingly, we find that the membership reso-
lution involved in this case was an invalid restric-
tion on Section 7 rights and thus unenforceable; it
follows that the Respondent's conduct in seeking to
enforce it against employees restrained and coerced
those employees in the exercise of their Section 7
rights, and thereby violated Section 8(b)(1)(A)
Because the Respondent's only basis for refusing
to accept employee Woodruff's resignation was the
invalid membership resolution, the Respondent's
refusal restrained and coerced Woodruff in the ex-
ercise of his Section 7 right to resign his member-
ship in the Respondent.5 By stating at the employ-
ee meeting of 1 August that it would take similar
action against any other employee who sought to
resign, the Respondent threatened all the affected
employees that it would unlawfully refuse to honor
their resignations.6
Similarly, the Respondent's threat to fine em-
ployees, pursuant to the invalid resolution, was an
4 We thereby overruled in part Machinists District 115 (Dalmo Victor
II), 263 NLRB 984 (1982), where a plurality of former Members Zim-
merman and Fanning held that a 30-day restriction on resignations would
be lawful Instead we followed the concurring opinion in that case by
Member Hunter and former Chairman Van de Water
5 Typographical Union (Register Publishing), 270 NLRB 1386 (1984),
Electrical Workers IBEW Local 66 (Houston Power), 262 NLRB 483
(1982), Machinists Lodge 727 (Lockheed-California Co), 250 NLRB 303
(1980), Distillery Workers Local 80 (Capitol-Husting Co), 235 NLRB 1264
(1978), Service Employees Local 680 (Leland Stanford University), 232
NLRB 326 (1977)
6 Graphic Arts Local 32B (George Banta Co), 250 NLRB 850, 851 fn
10 (1980)
274 NLRB No. 211
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practice.7 Of course, the provision of
the resolution regarding fines applied by its terms
only to members, and the Respondent was entitled
to enforce it against its members who had not re-
signed.8 The Respondent's statement, however,
must be considered in context, which was in refer-
ence to the entire membership resolution, including
its invalid prohibition of resignations, and the prior
statement by the Respondent that it would not
honor resignations. In this light, the statement was
in part a threat to fine employees who resigned and
then returned to work, and this the Respondent
cannot lawfully do.9
CONCLUSIONS OF LAW
1. The Employer 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. That portion of the Respondent's membership
resolution of 29 January 1980 purporting to prohib-
it resignations by members during periods when a
strike is imminent or in progress is an unenforce-
able restraint of the Section 7 right of employees to
resign their membership in a labor organization.
4. By refusing to accept or recognize the resigna-
tion of Richard Woodruff on 31 July 1980, the Re-
spondent restrained and coerced him in the exer-
cise of his Section 7 right to resign from member-
ship, and thereby violated Section 8(b)(1)(A) of the
Act.
5. By telling employees of Facciola Meat Com-
pany and other employers, that it would not accept
or recognize their resignations from membership in
the Respondent, pursuant to the membership reso-
lution, the Respondent restrained and coerced em-
ployees in the exercise of their Section 7 right to
resign from membership, and thereby violated Sec-
tion 8(b)(1)(A) of the Act.
6. By threatening to assess fines against employ-
ees for conduct following their resignations from
membership, the Respondent restrained and co-
erced employees in the exercise of their Section 7
rights to refrain from concerted activity, and there-
by violated Section 8(b)(1)(A) of the Act.
THE REMEDY
Having found that the Respondent engaged in
certain unfair labor practices, the Board will order
that it cease and desist. To effectuate the purposes
of the Act, we shall also order the Respondent to
offer to accept Richard Woodruff's resignation
from the Respondent, effective as of 31 July 1980,
the date he tendered it, and to make him whole for
any losses, including dues paid, he may have in-
curred as a result of the Respondent's refusal to
accept his resignation when tendered. While the
record does not establish whether Woodruff in-
curred any such losses, that can be determined at
the compliance stage of these proceedings. We
note that we would not regard those losses as in-
cluding dues Woodruff may have paid as a condi-
tion of continued employment under a lawful
union-security agreement.10 Where appropriate,
losses shall include interest computed in the
manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977).' i In addition, we shall order
the Respondent to cease and desist from maintain-
ing the restriction on resignations found invalid and
to expunge the provision from its governing docu-
ments.12 Engineers & Scientists Guild (Lockheed-
California Co.), 268 NLRB 311 (1983).
ORDER
The National Labor Relations Board orders that
the Respondent, United Food and Commercial
Workers Union Local No. 506, United Food and
Commercial Workers International Union, San
Jose, California, its officers , agents, and representa-
tives, shall
1. Cease and desist from
(a) Maintaining in its governing documents its
membership resolution of 29 January 1980 to the
extent it prohibits resignation by members during a
strike or when a strike is imminent.
(b) Refusing to accept or recognize the resigna-
tion of any employee as a member of the Respond-
ent on the basis of its membership resolution as de-
scribed above.
(c) Telling employees that it will not accept or
recognize their resignations from membership in
the Respondent during a strike or when a strike is
imminent.
(d) Threatening to impose fines against employ-
ees who work during a strike after having resigned
from membership in the Respondent.
(e) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Expunge from its governing documents the
provision of the membership resolution of 29 Janu-
' Id , Electrical Workers UE Local 1012 (General Electric Co), 187
NLRB 375 (1950), Machinists Lodge 405 (Boeing Co), 185 NLRB 380
(1970)
a See NLRB v Allis-Chalmers Mfg Co, 388 U S 175 (1967)
5 NLRB P Textile Workers Local 1029, 409 U S 213 (1972)
° See Capitol-Rusting Co , supra , 235 NLRB at 1265-66
See generally Isis Plumbing Co, 138 NLRB 716 (1962)
12 Member Dennis does not agree with this aspect of the remedy See
her position in fn 22 of Neufeld Porsche-Audi, supra
FOOD & COMMERCIAL WORKERS LOCAL 506 (FACCIOLA MEAT)
ary 1980 that prohibits its members from resigning
during a strike or when one is imminent.
(b) Offer to accept Richard Woodruff's resigna-
tion from membership in the Respondent, to be ef-
fective as of 31 July 1980, and make him whole for
any losses he may have incurred as a result of the
Respondent's unlawful failure to accept his resigna-
tion, as set forth in the section above entitled "The
Remedy."
(c) Post at its business offices and meeting halls
copies of the attached notice marked "Appen-
dix." 13 Copies of the notice, on forms provided by
the Regional Director for Region 32, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Mail to the Regional Director for Region 32
sufficient signed copies of the notice for posting by
Facciola Meat Company and other employer-mem-
bers of the Central California Meat Packers Asso-
ciation, if the employers are willing, in places
where notices to employees are customarily posted.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
i3 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 "
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 maintain in our governing docu-
ments our membership resolution of 29 January
1980 to the extent that it prohibits our members
from resigning from United Food and Commercial
Workers Union Local No. 506, United Food and
Commercial Workers International Union during a
strike or when a strike is imminent.
WE WILL NOT refuse to accept or recognize the
resignation of any employee as a member of Local
1461
506, based on that provision of the membership res-
olution.
WE WILL NOT tell our members that we will not
accept or recognize their resignations from Local
506 during a strike or when a strike is imminent.
WE WILL NOT threaten to impose fines on em-
ployees who resign their membership in Local 506
and subsequently work during a strike or behind
picket lines established by us.
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 offer to accept Richard Woodruff's
resignation from membership in Local 506, to be
effective as of 31 July 1980, the date he tendered it.
WE WILL make Richard Woodruff whole, with
interest, for any losses he may have incurred as a
result of our refusal to accept his resignation when
he tendered it.
UNITED FOOD AND COMMERCIAL
WORKERS UNION , LOCAL 506,
UNITED FOOD AND COMMERCIAL
WORKERS INTERNATIONAL UNION
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge On
September 2, 1980,1 John E. Tate filed charges under
Section 8(b)(1)(A) of the National Labor Relations Act
(the Act) against the Respondent party, Butchers Union,
Local No. 506, United Food and Commercial Workers
Union, AFL-CIO (the Union) 2 Tate's charge alleged, in
substance, that the Union restrained and coerced its
members who were employees of various San Jose and
Palo Alto area meat packing firms by "threatening to
impose excessive daily fines (in many cases 10 times their
earnings) if they exercised their right and freedom to
work." After an investigation, the Regional Director for
Region 32 of the National Labor Relations Board (the
Board) issued a complaint against the Union on April 16,
1981, and an amended complaint on October 21.
The complaint, as variously amended, including fur-
ther at trial, alleges, in substance, that the Union re-
strained and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act by refusing to
accept a membership resignation tendered by Richard W.
Woodruff on July 31 under circumstances where a strike
was due to take place on August 3 against, inter alia,
Facciola Meat Company, Woodruff's employer; and by
telling member employees in a membership meeting on
August 1 that they would be fined if they failed to re-
spect the strike-all against the background of a mem-
bership resolution passed in January purporting to fore-
All dates are in 1980 , unless otherwise specified
The Union's correct name appears as it has been amended at the trial
pursuant to stipulation
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close the right of members to resign "during any period
in which economic action . is imminent or actually in
progress" against their employer.3
I heard the matter at Oakland, California, on Novem-
ber 12, 1981 No witnesses are called by either party
The record consists entirely of the pleadings, as amend-
ed, the parties' stipulations of fact, certain documentary
exhibits, and the posttrial briefs filed by the General
Counsel and the Union.
FINDINGS OF FACT
1. STIPULATED FACTS
The Union represents employees in a multiemployer
bargaining unit consisting of certain San Jose and Palo
Alto, California meat packing companies, including Fac-
ciola Meat Company (Facciola).4 Those companies, as
members of Central California Meat Packers Association
(Association), were parties to a master labor agreement
with the Union which expired on April 30.
On January 29, the Union's executive Board passed a
"Membership Resolution" (resolution), approved by its
membership, which states in its entirety as follows:
Whereas the objectives set forth in both our
Local Constitution and our International Constitu-
tion, imposes upon each and every member the duty
to exercise the Union citizenship to comply with
Union Rules and to support the cause of Unionism
Now, therefore, be it resolved, it is hereby de-
clared to be the policy of this Local Union that any
member failing to respect any picket line established
by this Local Union or any other bonafide picket
lines established by any other Unions, shall be sub-
ject to a fine of $750 00 for each violation, and if
deemed appropriate by the Executive Board, possi-
ble suspension or expulsion from the Local Union in
accordance with the Constitution of this Local
Union and of the United Food and Commercial
Workers International Union
In addition, it is declared to be the policy of this
Local Union that no employee seeking to resign, re-
questing a Withdrawal Card or requesting a transfer
shall be entitled to receive such a Card and his res-
ignation shall be of no force and effect during any
period in which economic action against the em-
ployee's current employer is imminent or actually in
progress. This policy is declared in consideration of
the fact that each member obligated himself upon
becoming a member to never knowingly wrong a
fellow member and further in consideration of the
fact that in the event of a strike and/or lock-out all
members are relying upon all other members for
mutual aid and protection in accordance with Sec-
tion 7 of the National Labor Relations Act and the
9 It is therefore evident, as the General Cousnel acknowledged at trial,
that the theory of the underlying charge (i e , that the amount of threat-
ened disciplinary fines was unlawfully high) has been discarded in the
complaint
4 During the representative 12-month period before the amended com-
plaint issued, Facciola purchased and received goods or services valued
in excess of $50,000 directly from suppliers located outside California
fellow member 's oath of obligation upon becoming
a member of this International Union
On July 30, the Union sent a telegram to members of
the Association advising that it would commence strike
action against them on August 3. Such a strike took
place as scheduled, although its duration is not a matter
of record.
On July 31, the Union's secretary-treasurer Thomas
Baker denied the request of Facciola employee Thomas
Woodruff to resign his union membership, citing the res-
olution as the basis for his action
On August 1, at a mandatory meeting for union-
member employees of association members, attended by
virtually all of them, the Union's officers recited the text
of the resolution, informed member-employees that the
Union would not accept or recognize any tenders of
membership resignation, and further stated that the find-
ing provisions in the resolution would be fully enforced
if the member employees refused to honor the Union's
picket lines against their respective employers
II PRELIMINARY DISCUSSION AND ANALYSIS
A. Nature of the Complaint
It is useful , before setting forth the central issue as I
view it , to identify what in the Union 's admitted conduct
is-and is not-challenged by the complaint.
In its concluding paragraph 10, the complaint express-
ly limits itself to an attack on only that conduct of the
Union set forth in complaint paragraph 9, i.e., the
Union 's refusal to honor Woodruffs July 31 tender of
resignation , and the Union 's announcement in the August
I membership meeting to the effect that the disciplinary
fine aspect of the resolution would be enforced as to any
members who failed to honor picket lines during the
forthcoming strike and that current members would not
be permitted to resign in order to escape such discipline
The complaint conspicuously avoids any express chal-
lenge to the lawfulness under the Act of the promulga-
tion or maintenance in force of the resolution itself.
Moreover , pressed on this point during the trial proceed-
ings, the General Counsel stated that the mere passage
and maintenance of rules such as those contained in the
resolution was not contended to be unlawful.5
On brief, however , the General Counsel has stepped
back from that announced position by stating:
In the instant case . . . a meaningful remedy for the
alleged 8(a)(1)(A) violations . . must be, in part a
proscription against maintaining the Membership
Resolution in the context of the calling and com-
mencement of a strike. Since the Resolution was ob-
viously designed for use in precisely those circum-
stances, it is difficult to foresee how the remedy
5 Tr 18 24 through Tr 21 7 Note, however, that the General Counsel
in those passages expressly reserves the contention that the Act is violat-
ed when actual threats of discipline are made to members "because of
such a rule Tr 20 15-23
FOOD & COMMERCIAL WORKERS LOCAL 506 (FACCIOLA MEAT)
will not have the effect of prohibiting [the Union]
from maintaining the Resolution 6
B. The Issue
As all parties acknowledge, the central question herein
is one which was expressly left open by the Supreme
Court in decisions rendered in the early 1970's and
which has been variously raised and discussed by the
Board, albeit inconclusively, in cases since then. The
question may be stated broadly as follows-
To what extent may a union advance its concededly
legitimate interest in preventing strikebreaking
through the device of an internal rule purporting to
nullify the effect of a member's tender of resigna-
tion, and which is thus calculated to provide the
union with a means by which it may retain discipli-
nary control over strikebreaking activities by mem-
bers even after they have sought to resign their
membership?
Adapted to the undisputed factual setting herein, the
more narrow question is:
Does the Act render unlawful the Union's attempts
to enforce the Resolution by refusing, after an-
nouncing its intention to begin a strike on August 3,
to accept member Woodruff's July 31 tender of res-
ignation, and by telling its membership generally on
August 1 that it would fine members who failed to
honor the strike and would treat as ineffective any
tenders of resignation made during the imminency
or progress of the strike?
I first discuss the state of the law to date as I appre-
hend it
C. Pertinent Holdings
1. Established principals
Section 8(b)(1)(A) of the Act makes it unlawful for a
union to "restrain or coerce . . . employees in the exer-
cise of the rights guaranteed in Section 7; Provided, that
this paragraph shall not impair the right of a labor orga-
nization to prescribe its own rules with respect to the ac-
quisition or retention or membership therein
[Emphasis added ] 7
6 As I further discuss below, the inconsistency on this point between
the announced position of the General Counsel at different stages of this
proceeding stems principally from the confusion engendered by the
Board's disposition of Emprtre Enterprises (cited and discussed infra)
That case, read in isolation, invites the interpretation that Sec 8(b)(1)(A)
is not implicated by a union's mere promulgation and maintenance of in-
ternal rules restricting resignation, and that it is only when a union re-
fuses to honor a purported resignation which the union believes does not
satisfy its rule governing resignations that a justiciable controversy arises
under Sec 8(b)(1)(A) For reasons which are more fully set forth below,
I do not believe that such a broad interpretation is defensible, and I con-
clude in any event that this case requires a determination whether the
resolution pursuant to which the Union took the allegedly offending ac-
tions is itself lawful
7 Sec 7 of the Act guarantees the rights of employees "to form , join,
or assist labor organizations and the right to refrain from any or
all such activities " [Emphasis added I It is this latter right, i e , the
right of employees to refrain from supporting the strike against the Asso-
1463
There is a tension between the affirmative proscrip-
tions in Section 8(b)(1)(A) against union restraint and co-
ercion of employees in the exercise of protected rights,
and the rights retained by a union, as reflected in the
above-quoted proviso, to make and force internal rules
binding on its membership. Thus, when a union imposes
a fine against a member who works for an employer
against whom the union has called a lawful strike, such
disciplinary action, however coercive of an employee/-
member's right under Section 7 to "refrain from" activi-
ties supportive of the union , does not violate Section
8(b)(1)(A). Rather, it falls within the ambit of permissible
union actions vis-a-vis its member under the proviso.
NLRB v. Allis-Chalmers Mfg. Co., 388 US. 175, 195
(1967).
Following the reasoning of Allis-Chalmers, the Court
later established in Scofield v. NLRB, 394 U.S. 423
(1969), the general rule that:
Section 8(b)(1) leaves a union free to enforce a
properly adopted rule which reflects a legitimate
union interest, impairs no policy Congress has im-
bedded in the labor laws, and is reasonably enforced
against union members who are free to leave the
union and escape the rule. [394 U.S. at 430.]
Consistent with the rule in Scofield, the Court has held
that when an employee has resigned membership in a
union before violating its internal rule, the union no
longer retains the privilege under the proviso to impose
discipline for breach of the rule. Therefore, postresigna-
tion strikebreakers are immune from union discipline and
the union's attempts to impose discipline in such cases
violates Section 8(b)(1)(A). NLRB v. Textile Workers
Local 1029, Granite State Joint Board, 409 U S. 213, 217
(1972). See also Machinists Local 405 v. NLRB, 412 U.S.
84, 88 (1973).
2. The "open" question has not been resolved; the
progress of Dalmo Victor
The question presented herein, however , relating to
the extent to which the Act may limit the application by
a union of a rule purporting to restrict the right of mem-
bers to resign , is one which was expressly left open by
the Court. Granite State, supra, 409 U S. at 217; Booster
Lodge, supra 412 U.S at 88 . And, as of this writing, it
remains to be squarely addressed by the Board
A discussion of the progress of the Dalmo Victor case
illustrates the point In 1974, Machinists Local 1327,
International Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge 115 (Local 1327),
adopted a constitutional provision which stated in mate-
rial part as follows:
Improper Conduct of a Member .. Accepting em-
ployment in any capacity in an establishment where
a strike or lockout exists as recognized under this
ciation employers, which is offended by the Union' s actions herein, ac-
cording to the General Counsel's theory It is the Union 's right under the
8(b)(1)(A) proviso to prescribe its own membership rules which is offend-
ed by the complaint herein, according to the Union's theory
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Constitution , without permission Resignation shall
not relieve a member of his obligation to refrain
from accepting employment at the establishment for
the duration of the strike or lockout within 14 days
preceding its commencement. Where observance of
a primary picket line is required , resignation shall
not relieve a member of his obligation to observe
the primary picket line for its duration if the resig-
nation occurs during the period that the picket line
is maintained or within 14 days preceding its estab-
lishment
In 1975, Local 1327 levied fines against certain em-
ployees for crossing a picket line at Dalmo Victor, their
employer, while a strike by Local 1327 was in progress.
Those employees had been members of Local 1327, but
had resigned their membership during the strike. Charges
under Section 8(b)(1)(A) of the Act were filed against
Local 1327 for its imposition of the fines, the General
Counsel issued a corresponding complaint, and the
matter was decided by the Board on a stipulated
record 8 Local 1327 defended on the ground that its con-
stitutional provision quoted above constituted a restric-
tion on the right of a member to resign , that the restric-
tion furthered legitimate union interests , and, therefore,
that the prior resignations of the members who were
fined for their subsequent crossing of the Dalmo Victor
picket line were ineffective for purposes of escaping
union discipline.
The Board, over the separate dissents of Members Jen-
kins and Murphy, refused to construe the constitutional
provision as a "restriction on the right to resign," ac-
knowledging that if it were so construable , the Board
would be "faced with an issue the Supreme Court ex-
pressly left open in Scofield and Granite State." (231
NLRB at 720 (1977)) Thus, the Board stated: "that issue
is not before us, and we express no opinion on it." (Ibid.)
Rather, said the Board, "[T]he provision seeks to
control, not resignations by members, but . post-resig-
nation conduct . [C]onsequently . . . the Union's
fining the Charging Parties was . . unlawful under
Scofield and Granite State " (Id. at 720-721.)
In dictum the Dalmo Victor Board majority touched on
one element pertinent to the merits of the question "left
open" by the Supreme Court, namely whether a union's
interest in restricting resignations is a "legitimate" one
within the meaning of Scofield.9 Thus, the Board stated
that unions do have "legitimate" interests in restricting
resignations or postresignation activity. 231 NLRB at
721 (1977). But, lest this be misinterpreted as telegraph-
ing the Board's view of the merits of the "open" ques-
tion, the Board added (ibid )
But those interests are not absolute The issue is
whether unions' attempts to protect those interests
impermissibly intrude on other matters of concern
under the national labor policy.
8 Machinists Local 1327 (Dalmo Victor), 231 NLRB 719 (1977)
9 Supra, 394 U S at 430, in which the Court stated (emphasis added)
"Section 8 (b)(1) leaves a union free to enforce a properly adopted rule
which reflects a legitimate union interest
Local 1327 petitioned the United States Court of Ap-
peals for the Ninth Circuit for review of the Board's de-
cision in Dalmo Victor and the Board cross-applied for
enforcement of its order The Ninth Circuit panel dis-
agreed with what it termed the Board's "hypertechnical
reading of the Union's constitution," holding instead that
the provision relied on by Local 1327 was "Surely . a
`restriction on a member's right to resign."' Consequent-
ly, the Ninth Circuit concluded that the issue "left open"
in Granite State and Booster Lodge was squarely present-
ed. It therefore denied the Board's petition for enforce-
ment of its order and, instead, remanded the case to the
Board for further proceedings consistent with its opin-
ion 10
The Board has not yet issued a decision on remand in
Dalmo Victor.' t
3. Other cases
Note must be taken of certain other cases in this area
which the Board disposed of without reaching the cen-
tral question posed herein.
In Meat Cutters Local 81 (Tri-City Meats), 241 NLRB
821 (1979), involving a restriction -on-resignation rule
which is materially the same as that contained in the res-
olution herein , the Board expressly refused to decide
whether the maintenance of the rule alone violated Sec-
tion 8(b)(1)(A). There , the Board cited the facts that no
strike had ever taken place and no employee of any em-
ployer over whom the Board had jurisdiction had sought
to resign from union membership . The Board therefore
concluded that no "justiciable " issue had been presented
and dismissed the complaint , observing that it will not
decide cases "cast in purely theoretical terms." 241
NLRB at 822.12
The extent to which Empire is intended to rule out
from consideration the facial lawfulness of union rules
restricting resignation is unclear to me , for, in thus dis-
posing of Empire, the Board appears to have departed
from what seemed settled principles in the administration
of the Act Moreover, the General Counsel's equivoca-
tions set forth earlier regarding the extent to which the
is NLRB v Machinists Local 1327, 608 F 2d 1219, 1222 (1979) I note,
however , that the Ninth Circuit had, roughly 2 months earlier, issued a
decision reported at 101 LRRM 3096 in which it expressly decided in the
same cause , on the substantive merits , that Local 1327' s constitutional
"restriction on resignation" was lawful, and, accordingly, so was its
action in fining the Dalmo Victor employees who had previously "re-
signed " Apparently , that earlier opinion was withdrawn and the later
one substituted in order to give the Board the first opportunity to pro-
nounce on the "open" issue
t i I have been administratively advised that the Board heard oral argu-
ment in Dalmo Victor and on another case raising a similar issue , Pattern
Makers League (Rockford Beloit Pattern Jobbers Assn) (JD-(SF)-276-78),
on January 17, 1980 1 have concluded that no useful purpose would be
served by withholding decision herein pending the Board's resolution of
the questions presented in those cases , especially where the results on
their differing facts may not control the result herein
i2 Member Murphy, concurring, would have found, applying Scofield
language , that the rule was "properly adopted , reflects a legitimate union
interest , the limitation on acceptance of resignation is wholly restricted to
periods when a strike is imminent or in progress and thus is related to a
critical union concern , it does not, per se impair any congressional policy,
and since it is settled that a reasonable rule may be reasonably enforced,
it may surely be adopted and maintained in existence without enforce-
ment " 245 NLRB at 822
FOOD & COMMERCIAL WORKERS LOCAL 506 (FACCIOLA MEAT)
complaint may be taken to challenge the right of the
Union herein to pass and maintain the resolution further
may be seen as reflective of the confusion engendered by
that case.
It seemed established in, among other cases, Granite
State, that the Section 7 "right to refrain from" concert-
ed activties included the right to resign from union mem-
bership-a right which perhaps may be limited only by
specific limitation contained in the "contract of member-
ship" itself Granite State, supra, 409 U.S. at 216 13 It is
therefore not evident why the maintenance of a rule pur-
porting to restrict the exercise of a Section 7 right did
not, in itself, raise a justiciable question in Empire.14
In any event, there is undisputed evidence herein that
the Union did take action to "enforce" the resolution-
by refusing Woodruffs July 31 tender of resignation and
by reminding members in the August 1 membership
meeting of the provisions of the resolution (both as to
discipline which would be taken against strikebreaking
members and as to the restriction on the right to resign).
Accordingly, while the Board found it unnecessary in
Empire to meet head on the question of the validity of
the rule there in question, there appears to be no basis
for avoiding the question of the validity of the essentially
similar rule herein. And I conclude below that the ques-
tion of the resolution's validity under Section 8(b)(1)(A)
must be separately addressed, and that this must be done
before the lawfulness of its application may be decided.
Other related cases deserve discussion before I reach
ultimate conclusions. In Auto Workers Local 1384 (Ex-
Cell-0 Corp.), 227 NLRB 1045 (1977), on remand from
the Seventh Circuit, the full Board (Member Jenkins dis-
senting) again declined to "rule on the question of what,
if any, provision in a union's constitution or bylaws limit-
ing the time or manner of resignation would pass muster
under the Act" (227 NLRB at 1051); but it did find,
using an analysis which the court of appeals had directed
it to use, that the restrictions "upon the member are
broader than those which are necessary to serve the
union interest [ i e , in maintaining solidarity during a
strike] because resignations are barred during nonstrike
periods, as well, except for the last 10 days of the
year."15 In addition, however, the Board found the re-
striction to be defective in that "it accords no weight to
the competing considerations which may necessitate res-
ignation during a strike " (Ibid )
13 See also, e g, NLRB v Machinists Local 1327 (Dalmo Victor), supra,
in which the Ninth Circuit stated "[A] union member has a right to
resign from his union protected by Section 7 of the Act "
14 Moreover , the Board's dispostion in Empire failed to address the
point that the maintenance of the rule restricting resignations may itself
have been so effective as to restrain employees from taking the very res-
ignation action which Empire implies that the Board would require be
taken to create a justiciable case Elsewhere, the Board has regarded the
simple maintenance of a rule having the effect of limiting Sec 7 rights as
presenting a justiciable controversy , stating that "it is not necessary
to show that [the rule] was illegally motivated, discriminatorily enforced,
or even enforced at all" Blue Cross-Blue Shield of Alabama, 225 NLRB
1217, 1220 (1976) (emphasis added), and cases cited
'5 The restriction in question , materially unlike the resolution herein,
was interpreted by the Board as having the effect of permitting resigna-
tions only during an annual 10-day "escape" period and, further stipulat-
ed that such tenders would not become effective until an additional 60-
day period had elapsed (227 NLRB at 1050)
1465
In the latter passage, the Board was adverting to
obiter dicta in Justice Douglas' opinion for the majority
in Granite State (409 U S. at 217) But I would interpret
the cited dicta, in context, as no more than an explana-
tion why it was irrelevant, as the court of appeals had
stressed, that the same employees who had engaged in
strikebreaking after resigning had earlier participated in
the strike vote. The point, to the dicta in question, as I
interpret it, was that employees frequently change their
minds about the desirability of striking in the light of
subsequent developments and, "where, as here, there are
no restraints on the resignation of members . Section 7
requires that the member be free to refrain in November
from the actions he endorsed in May" (ibid, emphasis
added).
Particularly where the Granite State Court refused to
decide whether a restriction on resignation would
change the legal result in the case before it, I would not
read the cited dicta as requiring that a rule restricting
resignation must expressly provide in some manner for
exceptions for striking members who may change' their
minds about continuing the strike. Neither, in the light of
subsequent Board decisions, do I believe that the Board
intended to rely in Ex-Cell-O on the absence of a "mid-
strike escape" provision For I note that Member
Murphy, who joined the Board majority in Ex-Cell-O,
would have found the restrictions on resignation in the
later Dalmo Victor and Empire cases to be valid, even
though they contained no such "escape" provisions. And
Chairman Fanning, likewise a member of the Ex-Cell-O
majority, participated subsequently in Skateboard Produc-
tion 16 in which it was held that the rule in question
therein was an invalid basis for imposing postresignation
discipline, without relying on the absence of such an
"escape" provision in the rule
Based on all of these factors, I conclude that the
Board's reference in Ex-Cell-O to the failure of the rule
in question to "give weight to the competing consider-
ations which may necessitate resignation during a strike"
cannot be taken as an instruction that only those rules
which do give some "weight" to those "competing con-
siderations" will pass muster under the Act.17
is Broadcast Employees NADET Local 531 (Skateboard Productions),
245 NLRB 638 (1979), in which the Board panel again declined to decide
the broad question "left open" by the Court and, instead, found that the
rule in question (materially dissimilar to the resolution herein ) failed to
provide any notice as to when a resigning member's resignation could be
regarded as becoming effective
17 Moreover, exactly what considerations would be in competition
here is not easy to discern On the one hand, there is, of course , a union's
recognized legitimate interest in maintaining strike solidarity On the
other hand, there is the Sec 7 right of employees to refrain from strike
participation But the general balance between those interests was struck
in favor of the union vis-a-vis its members in Allis-Chalmers, and in favor
of nonmember employees in Granite State It therefore comes very near to
begging the question left open in Granite State to rely on that same case
as authority for the proposition that a union rule against resignation in a
strike setting must contain some provision for "escape" during a strike
For such rules exist to prevent exactly the kinds of individual breaches of
solidarity which Justice Douglas described as commonplace in the dicta
cited by the Ex-Cell-O Board (t e , the failure of some strikers , for a vari-
ety of perfectly understandable reasons , to stick with the union's decision
to continue the strike) And whether a union may have such rules is the
very question left open by Granite State and which is at issue herein.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. CONCLUDING ANALYSIS
A. Introduction
Certain guiding principles have emerged from the
post-Granite State decisions of the Board regarding what
types of union resignation restrictions will not pass
muster under the Act; but the Board has not yet stated
affirmatively that there are circumstances under which
unions may adopt rules restricting resignation as a means
of retaining disciplinary leverage over strikebreaking by
members. Since the Board has had numerous opportuni-
ties since Granite State flatly to rule out such options for
unions and has declined to do so, and since the proviso
to Section 8(b)(1) expressly affirms the right of unions to
set their own membership rules, I am compelled to con-
clude that unions may impose, as a term of the member-
ship "contract," certain rules designed to preclude mem-
bers from resigning during periods when the union's in-
terest in solidarity is most pressing
With a case before me for decision, and in the absence
of precedent, it remains for me to propose, and then to
apply, criteria which in my judgment adequately balance
the competing interests which Congress has built into
Section 8(b)(1) and its proviso, leaving it ultimately to
the Board, subject to court review, to determine whether
the balance has been properly struck
I recognize at the outset that virtually any rule re-
stricting resignation which a union might draw in a
good-faith effort to satisfy whatever requirements the
Board may impose, could nevertheless, in unusual cir-
cumstances, fail to provide a given employee an advance
opportunity to make a reasoned judgment whether to
join, or adhere to, union membership. Thus, for example,
it could occur that an employee who acquired member-
ship for the first time only days before a labor agreement
was to expire, followed immediately by a strike, might
never have had any opportunity to avail himself of the
resignation option which an otherwise generally proper
rule might permit Similarly, recognition must be given
to the fact that employees sometimes enter into union
membership without initially understanding what all the
stakes are, or join under some less-than-fully "voluntary"
circumstances (e.g , under compulsion of a union-security
clause in a labor agreement without knowing that the
law has been interpreted to allow compliance with such
a clause through a mere "financial core" relationship
with the union which does not entail vulnerability to
union discipline.' 8 If, however, any rule restricting resig-
nation may pass muster under the Act only by expressly
allowing for the myriad extraordinary contingencies
which may arise, then it is hard to envision what lan-
guage might be drafted by a union to satisfy the "ade-
quate notice" requirements properly underlying the
Board's rationale, in e.g, Ex-Cell-O supra 19
18 NLRB v General Motors Corp, 373 U S 734, 742-744 (1963), see
also Service Employees Local 680 (Leland Stanford Junior University), 232
NLRB 326 (1977)
19 This, I submit , is not a mere draft.ng problem, for any rule which
states on the one hand that a member may not resign under certain cir-
cumstances , unless he happens to fall within one of potentially hundreds
of exceptional categories , will almost surely be itself so vague as to fail to
let any would-be resigner know with reasonable certainty where he
Thus, I reach a corollary proposition which informs
my suggested criteria below The validity of union rules
in this area should not be judged simply by reference to
how they might improperly affect some hypothetical
employee/member in some extraordinary hypothetical
circumstance; but, lather, such rules should be presumed
to be valid if they meet certain threshold criteria, and the
validity of their application should be regarded as a sepa-
rate issue, which depends on the degree to which the pu-
tative resigner had actual advance notice of a union rule
restricting his resignation option before he sought to ex-
ercise it
This two-stage analysis is warranted by both policy
and practical considerations. By treating as a distinct an-
alytical stage the question whether a rule is facially
valid, an avenue is preserved for unions and member em-
ployees alike to have settled what rules in this area will
pass muster under the Act. And it is in the interests of
both of those classes for there to be a forum in which to
challenge the suitability of such rules, without regard to
whether or not they have been enforced For their mere
maintenance may be presumed to restrain employees in
the exercise of a statutory right (see discussion of Empire
Enterprises, supra) Indeed, if, as a strict reading of
Empire suggests, members may only test the validity of a
given rule restricting resignations by breaking that rule,
then often neither the member nor the union will know
until the stakes are unnecessarily high for both parties
whether the rule is valid Moreover, as I further discuss
below, to regard the lawfulness of the rule itself as being
necessarily tied to the peculiar circumstances of its en-
forcement in given instances needlessly tends to con-
found litigation by blurring important distinctions affect-
ing the allocation of burdens among the parties. In addi-
tion, the suggested two-stage approach fully satisfies the
need for employees whose resignations may have been
refused pursuant to such rules to have statutory recourse
upon a showing that even a facially valid rule was im-
properly applied-either because the employee qua
member failed to receive adequate advance notice of the
rule's existence, or because the rule did not reasonably
cover the situation in which he found himself.2°
stands And if no rule will pass muster for these reasons, then it is per-
haps better simply to hold that rules which restrict resignation in order to
maintain disciplinary leverage in strike situations are, per se unlawful
under the Act, even though the interest of unions in having such rules is
abstractly regarded as "legitimate " Dalmo Victor, supra 231 NLRB at
721
zn Scofield itself seems to require focusing on these points at the
"second stage" of the analysis For the requirement in Scofield that allows
only rules which are, inter alia "reasonably enforced" and then, only
against "members who are free to leave the union and escape the rule"
necessarily implies at least two factual preconditions First, that any
member against whom a union rule is invoked must have had prior notice
of the rules (otherwise, his "membership" cannot be construed as a "con-
tract" to observe the rule, and there is , further , no binding rule to
"escape" from) Second, even as to members who may be aware of a
rule's existence , that the rules " reasonably " covers the situation which
triggered its enforcement against the member These Scofield require-
ments presumably must be applied not only to substantive union rules
against certain misconduct by members , but also to rules purporting to
limit the circumstances in which the membership tie may be severed (and
which are themselves calculated to retain for unions the membership
nexus which permits imposition of discipline for violation of a substantive
rule)
FOOD & COMMERCIAL WORKERS LOCAL 506 (FACCIOLA MEAT)
By thus bifurcating the issues of rule validity and rule
application, the rights of union under the proviso to es-
tablish rules pertaining to the acquisition and retention of
membership are preserved so long as the rules them-
selves do not on their face unduly restrict (through
vagueness or overbreadth) the exercise of the right to
resign Similarly, the rights of employees to be free from
restraints on their Section 7 rights are preserved so long
as they do not waive those rights by forming or continu-
ing contracts of membership after being put on notice of
facially valid rules within their organization which have
such an incidental restraining effect.
B Proposed Criteria for Analysis of the Validity of a
"Resignation " Rule
Bearing in mind the main concerns underlying the
Board's disapproval of certain specific union rules re-
stricting resignation in the cases discussed above, and the
concerns generally reflected in Scofield, I submit that a
rule should be presumed to be valid if:
(a) It is "properly adopted" within the meaning of Sco-
field.
(b) Its terms clearly apprise members when they may
resign and when they may not.
(c) It is no more restrictive of the right to resign than
is necessary to vindicate legitimate union interests.
Thus, I submit, if a union disciplines an employee for
conduct engaged in after the employee tendered a resig-
nation, and if the discipline would be proper if the em-
ployee had been a member, it ought to be deemed a suf-
ficient defense in law that the union refused to honor the
resignation, acting in accordance with a rule which satis-
fies the foregoing criteria. This need not end the inquiry;
however, for if the employee in question had no ade-
quate notice of the rule's existence, a violation of Section
8(b)(1)(A) could be found on the ground that the
member never bound himself to such a rule and, there-
fore, it was not "reasonably enforced." Scofield, supra.
Cf Ex-Cell-O, supra 21
21 In Ex-Cell-0, the Board majority directs an allocation of burdens in
which the General Counsel arguably need do no more than show, prima
facie, that an employee was disciplined by a union for conduct which the
employee engaged in after tendering a resignation, and that the burden
then shifts to the union not only to show that it acted pursuant to a valid
rule restricting resignations, but also to show that the employee knew of
the rule's existence before his assertedly untimely resignation 227 NLRB
at 1048-49 In 20 I consider myself bound to this burden-of-proof analy-
sis, although I submit that it may lead to untoward results Given our
institutional setting , in which the General Counsel performs a full investi-
gation of facts before issuing a complaint, it may be assumed that the
General Counsel believes, when she issues a complaint in this area, that
either the resignation rule pursuant to which the union acted was, per se,
invalid, or the employee who was disciplined had no notice of the other-
wise valid rule (or sometimes both) As a practical matter, therefore, it
does not burden the General Counsel to spell out in her complaint what
it is about the union's conduct which is in question and to place on her
office the threshold burden in appropriate cases of pleading and proving
the lacking-of-notice feature, with the union bearing only the rebuttal
burden of seeking to show, when " notice" is in issue , that it gave proper
notice to the affected employee Put another way, there is no warrant in
either practical experience or in the institutional needs of this agency to
presume that union members are not aware of their union's rules By con-
trast , under the Ex-Cell-O allocation of burdens, complaints may be un-
necessarily vague and may create confusion for the respondent union and
for the trier-of-fact (and reviewing bodies as well) as to precisely what is,
1467
C. Conclusions as to the Validity of the Resolution
1 Was the resolution "properly adopted" within the
meaning of Scofield?
I conclude that it was. It was "approved by the mem-
bership" according to the stipulated facts herein; and the
General Counsel nowhere challenges it as defective on
the ground that its adoption was improper.
2 Do its terms clearly apprise members when they
may, and may not, resign?
The General Counsel contends that there is a fatal am-
biguity in the use of the term "imminent" in the core
section of the resolution which proscribes resignations
"during any period in which economic action against the
employee's current employer is imminent or actually in
progress." In this regard, the General Counsel argues
that the term "could be interpreted to mean any time
from the hours preceding a strike, the entire period fol-
lowing a strike authorization vote, or possibly the period
following the expiration of a contract."22
I believe that the General Counsel's interpretation is
farfetched and cannot be squared with the dictionary
definition of the term "imminent," which is: "About to
occur, impending "23 The term thus plainly conveys a
sense of obvious immediacy which is totally lacking in
the other situations postulated by the General Counsel,
which involve a mere potentiality for "economic action."
It is true that the term "imminent" does not translate
automatically into particular units of time and thus lacks
chronometrical precision. But to pick at it on this level is
to ignore the substantial practical reasons why a more
precise deadline would often fail to satisfy legitimate
union interests; and it makes a fetish of the, at best, de-
batable "need" for employees to know too the very last
minute when they might exercise a resignation option.
For it often occurs in normal labor relations that, while
strike authorization may have taken place months earlier,
an actual strike call may not be announced by a union
until minutes before strike action is to take place; and it
would surely do no good for a union to cast a rule re-
stricting resignations in terms which would allow resig-
nations until the very moment that a strike actually
begins (the only seemingly precise formulation possible
since any other event is incapable of clear, advance defi-
nition in a rule of general application). To do so would
render it impossible for a union to know with any cer-
tainty what kind of strike support it could expect from
even its current members, until the strike instruction ac-
tually issues. Neither would it be productive of other de-
siderata or our national labor policies for unions to be
forced into situations where the potential for tactical mis-
judgment is so great. For example, it serves no useful
purpose from the standpoint of stability in labor relations
for unions to be required to guess about the degree to
and is not, in issue, resulting in needlessly murky records I believe that
this is a case in point, for reasons further discussed below
22 Implicitly, therefore, the General Counsel accepts, as I do, that
there is no ambiguity in the remaining language referring to "economic
action" which is "actually in progress "
23 The American Heritage Dictionary of the English Language, Hough-
ton Mifflin Company, 1976 Accord The Oxford English Dictionary, The
Oxford University Press, 1971
1468 DECISIONS 'OF NATIONAL. LABOR RELATIONS BOARD
which its current members will honor, an actual strike in-
struction Rather , a union needs to-know before, a strike
call issues how many of the employees it represents will
answer that call (or, at least , how many will be liable to
discipline for failure to answer it). As to . persons 'who
have resigned membership before a strike is called,. a
union may presume that their support will not•,be forth-
coming. As to those who have retained their membership
until a strike declaration , however , a union ought.to be
able to presume that they fully, appreciate the cone=
quences of their membership contract , including 'their
vulnerability to discipline for their subsequent failure to
maintain solidarity during ' a strike.
Accordingly , so long as the term "imminent", may be
taken to imply that a prior announcement has been made'
that a strike is "about to occur" or is "'impending," the
resolution is not facially so vague as to fail to give mem-
bers notice when they may no longer- exercise their oth-
erwise generally available resignation option . And,' since
the resolution otherwise makes clear that resignation may
occur at any time other than when economic action
against the member 's current employer is imminent or
actually in progress , it plainly leaves a substantial period
of time open for employees to exercise their statutory
right to resign from the Union.
3 Is the resolution no more restrictive of the right to
resign than necessary to vindicate legitimate union inter-
ests?
I conclude that the criterion is satisfied by the resolu-
tion. It limits its application to situations which are of
core concern to a union in representing employees-situ-
ations in which a decision to take prompt strike action
has been made and in which the need to rely on the sup-
port of all current members is paramount if the strike
aims are to be met . While there are other situations
which might similarly be treated as so important to the
fulfillment of legitimate union functions that they might
warrant application of a rule against resignation, these
are not raised by the instant facts , and need not be ad-
dressed . 24 I therefore conclude that the resolution is
prima facie valid and may be maintained in effect with-
out unduly disturbing employees ' Section 7 rights.
D. Conclusions as to the Validity of the Application of
the Resolution
Having concluded that the passage and maintenance of
the resolution falls within the realm of union conduct
privileged by the proviso to Section 8(b)(1), it remains to
24 1 note in this regard that the resolution does not proscribe resigna-
tions in situations in which a union might legitimately seek to have its
members observe economic action at the premises of an employer other
than the members ' own employer If a resignation rule did purport to op-
erate in such "sympathy" situations, a different complex of considerations
would come into play It may be observed, however, that it would nor-
mally be much harder in that case for a member to anticipate a primary
strike at another employer 's premises and thus much harder for that
member to know when he could resign in order to avoid discipline for
failing to observe such a strike By contrast herein , it is much more likely
as a general proposition that a member will be able to predict with rea-
sonable certainty when ecomonic action might take place against his own
employer Therefore, under the resolution, he will have ample opportuni-
ty to resign, if that is his desire , well in advance of periods when strikes
against his own employer might be called
determine whether ,it ' was validly applied Consistent
with earlier discussion and analysis, I treat this as being,
at bottom, a "fair notice" issued If it can be found that
members , against whom, the resolution was applied had
fair advancer notice of,the existence of the resolution, and
that they failed -to • take advantage of the resignation
option until it was,"too late"- under the terms of the reso-
lution'itself; then no•violation of Section 8(b)(1)(A) may
be found,in the Union's actions For, under those circum-
stances, it can be said that the affected members know-
ingly bound themselves to the contract of membership,
as reflected , inter alia , in the rules governing resignation
from membership which are contained in the resolution.
Tq the extent that the question of whether or not
members recei'ved' actual advance notice of the existence
and terms of -the 'resolution is properly before me,25 I
conclude that there was such notice. For it was stipulat-
ed that' the '"membership" ' (an all-inclusive term which
the General Counsel embraced) "approved" the resolu-
tion , and, ipso factor, "members" (i e , persons within
that class) had notice of its terms from the point of ap-
proval onward.
For similar reasons, I conclude that the stipulated
record permits me to find that member Woodruff like-
wise had such notice well before July 31, the date on
which he sought to resign , but was rebuffed Again, if
the General Counsel intended to claim that there was
something unique about Woodruff's stipulated status as a
"member" which removed him from the general "mem-
bership" class which, it was stipulated, "approved" the
resolution on January 29, them, as a matter of fair notice,
it seems only reasonable that the General Counsel should
bear the burden of pleading and proving the same I
therefore infer, absent contrary evidence, that member
Woodruff was part of the "membership" class which ap-
proved the resolution in January, and that he thereby
knowingly assented to, and became bound by, the nova-
tion in the membership contract which is reflected in the
resolution.
Accordingly, that portion of the complaint must be
dismissed which alleges that the Union violated Section
8(b)(1)(A) by refusing to accept Woodruffs July 31
tender of resignation made after the Union had already
declared that a strike would take place on August 3
For identical reasons, the balance of the complaint
must be dismissed which alleges that the Union's an-
25 Pursuing the reasoning in fn 21, 1 suggest that where, as here, the
complaint is directed only at the Union's action in enforcing a rule which
the complaint concedes was "approved" by the membership 7 months
earlier, it may arguably call into question the validity of the rules itself
but it does not raise the question whether members received "fair notice"
of its terms. If the General Counsel wished to raise that latter question,
the complaint could have made that clear The Union would then have
received appropriate notice that, independent of the lawfulness under the
Act of its passage and enforcement of the resolution, the Union was
being charged with a violation for failure to spell out its rules to its mem-
bership, and the Union might well have made a different record than the
one reached by stipulation herein This analysis was approved by the
Board in an analogous case , Pottery Workers (Colton Mfg), 254 NLRB
696, 701 (1981) Accordingly, while I conclude that the record permits
me to find that the Union's membership did have fair notice of the terms
of the resolution , I do not believe that the question was ever properly put
into issue by the complaint
FOOD & COMMERCIAL WORKERS LOCAL 506 (FACCIOLA MEAT) 1469
nouncement to its "members" during the August 1 mem-
bership meeting that the resolution would be enforced in
all of its particulars violated Section 8(b)(lXA). For,
absent a showing that the "members" who attended that
meeting were somehow different from the " membership"
which approved the resolution in January , the Union's
announcement in the August 1 meeting amount to noth-
ing more than a reminder to the same persons who had
earlier approved the resolution of the terms of that reso-
lution.
I would, therefore, dismiss the complaint.
CONCLUSIONS OF LAW
1. Facciola Meat Company is an employer engaged in
commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. That portion of the resolution purporting to prohibit
resignation by members during periods when economic
action against their current employer is imminent or ac-
tually in progress does not, on its face, unlawfully re-
strain or coerce employees in the exercise of their rights
under Section 7 of the Act and, therefore, its mainte-
nance does not violate Section 8(b)(1)(A) of the Act.
4. The Union's actions in enforcing the resolution by
refusing to accept member Woodruff s tender of resigna-
tion on July 31, and by reminding members of the terms
of the resolution during a general meeting on August 1,
all under circumstances where the Union had previously
declared that a strike would take place on August 3, did
not unlawfully restrain or coerce employees in the exer-
cise of their rights under Section 7 of the Act and, there-
fore , those actions did not violate Section 8(b)(1)(A) of
the Act.
[Recommended Order for dismissal omitted from pub-
lication.)