Local 1384, Automobile Workers

National Labor Relations Board - Board Decisions

Jan 14, 1977

227 N.L.R.B. 1045 (N.L.R.B. 1977)

LOCAL 1384, AUTOMOBILE WORKERS 1045
Local 1384, United Automobile, Aerospace, Agricul-
tural Implement Workers, UAW (Ex-Cell-O Cor-
poration) and Paul M. Gillam and Susanne Vida.
Cases 25-CB-1677 and 25-CB-1782
January 14, 1977
SUPPLEMENTAL DECISION AND
ORDER
On July 30, 1975, the National Labor Relations
Board issued a Decision and Order in the above-
entitled proceeding,' finding that the Respondent
had violated Section 8(b)(1)(A) of the National Labor
Relations Act, as amended, by threatening to cause
the discharge of 34 employees for failure to pay dues
to Respondent. The Board concluded that those
employees were not required to pay dues because 28
of them had effectively resigned their memberships
prior to the operative date of the maintenance-of-
membership clause of the collective-bargaining agree-
ment, and the remaining 6 were not union members
on that date. In reaching this conclusion, the Board
affirmed the Administrative Law Judge's finding that
the restrictions upon resignations set forth in Respon-
dent's International constitution did not constitute a
bar to the employees' resignations. The Board or-
dered Respondent to cease and desist from the unfair
labor practices found and take certain affirmative
actions to remedy such unfair labor practices.
Respondent thereupon petitioned the United States
Court of Appeals for the Seventh Circuit to review the
order of the Board. The Board filed a cross-applica-
tion for enforcement of its Order. On May 12, 1976,
the court remanded the case to the Board.2 The court
stated that the Board had not addressed the issue of
"whether the union's limitation upon a member's
right to resign was invalid because of the failure of the
union to spell out on the application for membership
card" its constitutional provision regarding the resig-
nation of members. Noting that the Supreme Court
had left the issue of the reasonableness of a union's
contractual restrictions upon a member's right to
resign,3 the court stated that the Board failed to
recognize
that there might or might not be grounds of policy
or of statutory history for distinguishing that issue
from one where the employee had not consented
to a restriction, or where the effectiveness of a
resignation was involved in some collateral way
which did not involve the proviso in Section
8(b)(1)(A).
The court remanded the case to the Board to consider
these questions, as well as the issues of
whether the restriction of resignation in the
instant case was effectively agreed to by an
employee when he signed the card which purport-
ed to incorporate by reference the union constitu-
tion . . . [and] whether a restriction of resignation
to a 10-day period is so reasonable in the time
allowed as to fall within the proviso in Section
8(b)(1)(A) of the Act, as being the exercise of "the
right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of
membership therein."
On June 16, 1976, the Board advised the parties that
it had decided to accept the remand and that they
might submit statements of position with respect to
the issues raised by the remand. Thereafter, Ex-Cell-
0 Corporation, a party in interest, and Respondent
filed statements of position.
A. Background and Facts
Respondent was certified by the Board as the
employees' bargaining representative in 1965 and was
granted a charter by the International Union in 1966.
At various times between 1966 and 1970,4 the 34
employees involved herein signed "Official Applica-
tion for Membership" cards and submitted them to
Respondent.5 As set forth in footnote 5, these cards
contained a "pledge" that the applicant would
"observe the Constitution and laws of this Union."
1 219 NLRB 729
2 Local Union No 1384 of the International Union, United Automobile,
Aerospace and Agricultural Implement Workers ofAmerica, UA W fix-Cell-0
Corporation] v N L R B, Docket 75-1910 (C A 7, 1976) (unpublished
order)
s See Booster Lodge No 405, International Association of Machinists and
Aerospace Workers, AFL-CIO [Boeing Co J v N L.R B, 412 U S 84 (1973),
and N L R B v Granite State Joint Boar Textile Workers Union ofAmerica,
Local 1029, AFL-CIO [International Paper Box Machine Co J, 409 U S. 213
(1972).
4 Only two employees signed application for membership cards in 1966
The remaining employees signed cards in 1968, 1969, or 1970
5 The cards stated as follows:
I hereby apply for membership in the International Union, United
Automobile, Aerospace and Agricultural Implement Workers of Amen-
ca (UAW)
227 NLRB No. 87
I authorize UAW, its agents or representatives, to act for me as my
exclusive representative in collective bargaining, in respect to all terms
and conditions of my employment and to enter into contracts with my
employer covering all such matters
I further authorize the said union to act as my exclusive representative
in the presentation , prosecution, adjustment and settlement of grievanc-
es and other disputes , all as provided in the constitution of the union
I pledge my honor to faithfully observe the Constitution and laws of this
Union and the Constitution of the United States (or the Dominion of
Canada as the case may be); to comply with all the rules and regulations
for the government thereof; not to divulge or make known any private
proceedings of this Union , to faithfully perform all the duties assigned
to me to the best of my ability and skill, to so conduct myself at all times
as not to bring reproach upon my Union , and at all times to bear true
and faithful allegiance to the International Union , United Automobile,
Aerospace and Agricultural Implement Workers of America (UAW),
(Continued)
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aside from receiving their applications for mem-
bership, Respondent took no steps to advise the
employees that they had become members. None of
the employees received a membership card, partici-
pated in an initiation ceremony, or paid any initiation
fees or dues. At the hearing, it was revealed that the
payment of initiation fees and dues had been waived
by Respondent's International president for the
period preceding the execution of the collective-
bargaining agreement in May 1972. Also at the
hearing, International Representative James Johnson
testified that the only act necessary for the acquisition
of membership is the signing of an application-for-
membership card of the kind signed by the employees
involved in this proceeding. Johnson stated that such
procedures as attendance at meetings , a swearing in
ceremony, or a vote by members of the local union
are not required.
As noted by the court, the application-for-member-
ship cards do not set forth or specifically refer to the
provision of Respondent's International constitution
governing resignation.6 The requirements of this
provision can be summarized as follows: (1) the
member must be in good standing at the time of his
resignation; (2) there must be no charges pending
against him; (3) the resignation must be by written
communication; (4) it must be signed by the member;
(5) it is to be sent by registered or certified mail; (6)
return receipt for the resignation must be requested;
(7) the resignation must be sent to the financial
American Federation of Labor and Congress of Industrial Organiza-
tions (AFL-CIO)
The card signed by Charles Cox was entitled "Special Official Application
For Membership" and was worded in slightly different terms, but similarly
pledged the applicant to "observe the Constitution and laws of this Union "
6 Art 6, sec . 17, of Respondent 's 1970 International constitution (which
was in effect at the time of the resignations involved herein ) provided as
follows
Section 17 A member may resign or terminate his membership only if
he is in good standing , is not in arrears or delinquent in the payment of
any dues or other financial obligation to the International Union or to
his Local Union and there are no charges filed and pending against him
Such resignation or termination shall be effective only if by written
communication , signed by the member, and sent by registered or
certified mail, return receipt requested , to the Financial Secretary of the
Local Union within the ten (10) day period prior to the end of the fiscal
year of the Local Union as fixed by this Constitution , whereupon it shall
become effective sixty (60) days after the end of such fiscal year,
provided, that if the employer of such member has been authorized
either by such member individually or by the Collective Bargaining
Agreement between the employer and Union to check off the member-
ship dues of such member, then such resignation shall become effective
upon the effective termination of such authorization , or upon the
expiration of such sixty (60) day period, whichever is later
r Art 15
B Art 40, sec 7 As noted above, Respondent has been chartered since
1966
s Balser stated that she was so informed by Marge Glotzbach whom she
identified as Respondent 's secretary. In addition, employee Cox testified that
Juanita Powers told him at the time she solicited his card in July 1970 that no
copies of the constitution were available Although the Administrative Law
secretary of the local union; (8) it must be tendered
within the 10-day period prior to the end of the fiscal
year. (The constitution elsewhere provides that the
fiscal year ends December 31.) 7 The resignation then
becomes effective 60 days after the end of the fiscal
year unless the employer has been authorized to
check off the member's dues, in which case the
resignation becomes effective upon the termination
of such authorization, or upon the termination of the
60-day period, whichever is later.
Although Respondent's International constitution
also provided that the local union's financial secre-
tary "shall . . . provide each member with a copy of
the Constitution and Bylaws,"8 there is no evidence
in the record that the employees were in fact provided
with a copy of the International constitution after
signing the application-for-membership cards and
submitting them to Respondent. Indeed, all of the
relevant evidence in the record is to the contrary.
Thus, employee Balser, who worked in the Union's
office, testified that she asked for a copy of the
constitution in late 1970 or early 1971 and was told
that none was available .9 Further, Union Representa-
tive Johnson conceded that prior to the signing of the
collective-bargaining agreement in May 1972 copies
of the constitution "maybe were not available" in the
local union office. Johnson explained that after a
local union obtains a contract and starts collecting
dues it requests copies from the International Union
and has to pay for them.10
Judge found that "copies of the International Union constitution were not
available in the Local 1384 office ," she did not rely on Cox's testimony
because "Powers was not shown to be an agent of the Union " Ex-Cell-O
Corporation, supra, 219 NLRB at 735, fn 6. We note , however, that both Ex-
Cell-O Plant Manager VanCleave and employee Balser identified Powers as
secretary of the Local
10 Respondent has mischaractenzed the record in asserting that
the record in the Court of Appeals shows actual knowledge by
employees . one of them had a copy of the Constitution (R 57), another
testified that he had read it (R 63), and it was disclosed that the
Company was actually assisting employees in filing formal resignations
(R 61). Thus the record refutes rather than sustains any inference that
the employees were ignorant of the UAW resignation rule at the time
they tendered their resignations
The pages cited above refer not to the transcript of the hearing in this matter,
but to the arbitrator's "discussion" of the testimony given before him by
certain employees as set forth in his award ofJuly 31, 1973. The arbitrator,
however, prefaced his remarks by stating that his "references in that
discussion to testimony given by the 37 [employees] are not intended to
mean that I have necessarily accepted that testimony at face value ." Turning
to the specific evidence retied on, Respondent 's first citation is to a summary
of the testimony of an employee not involved in the instant unfair labor
practice proceeding The second citation is to the following comment by the
arbitrator concerning employee Verlin Ryan . "He had seen the Union's
constitution but claims not to have 'read it completely .' " Respondent 's final
reference is to the arbitrator 's statement that the resignation letter of
employee Milton Dale Gillam "was notarized by the Plant Manager's
secretary " (We note in passing that notarization is not one of Respondent's
"formal" requirements .) Examination of the entire award reveals that the
arbitrator summarized the evidence on this subject as follows
LOCAL 1384, AUTOMOBILE WORKERS 1047
On September 3, 1970, while Respondent's status as
collective-bargaining representative was being litigat-
ed, a strike commenced which continued for an entire
year. On various dates during the strike, 26 employees
sent letters to the Union resigning their memberships.
In addition, one employee, John Mackey, hand
delivered his letter of resignation to Respondent's
president, Roland, in December 1970, and another
employee, Verlin M. Ryan, orally informed Roland
of his resignation in February 1971.11 Of these 28
employees, 16 worked throughout the strike and 12
returned to work after striking for periods ranging
from 1 to 6 months.
None of the resignations complied with all eight of
the requirements of Respondent's International con-
stitution which are listed above. All of the resigna-
tions were untimely because they were not "sent"
within the last 10 days of the year. Although the
resignations were, therefore, patently defective under
the International constitution, Respondent did not
return them to the employees,12 advise the employees
that the resignations were untimely, or respond to the
resignations in any other manner.
On May 8, 1972, Respondent and the Employer
entered into a collective-bargaining agreement effec-
tive May 1, 1972. The agreement contained a
maintenance-of-membership clause requiring, as a
condition of employment, the payment of dues
during the life of the agreement by employees who
were members of the Union on May 1, 1972, or who
became members thereafter.13
After the contract was executed and the mainte-
nance-of-membership clause was therefore in effect,
the 34 employees involved herein were advised by
Respondent of their membership status for the first
time . All the employees received letters from Respon-
dent addressed to each as "Dear Member" which
stated that "each employee who has an application
for membership on file owes Union dues," explained
what the dues amounted to, and concluded that
It appears that none of the 37 (except one) had asked for a copy of
the International 's constitution , nor was any copy voluntarily offered to
them by the Union. One of the 37 testified that he had read the Union
constitution , but not completely.
In any event , as discussed more fully infra, we conclude , on the basis of the
entire record in this proceeding , that the finding of the arbitrator that one of
the employees involved herein "read the Union constitution , but not
completely" is insufficient to establish that the 28 resignees had knowledge of
the union resignation provision
I' The facts surrounding this oral resignation are set forth in the Board's
initial decision in this proceeding.
Ryan informed Respondent ' s president, Roland, orally during the
[union] meeting of his resignation from the Union After the meeting,
Ryan approached President Roland and again notified him of his
resignation , at this time Roland turned to someone else and said, "With
this kind of help we don't need him anyhow " [Ex-Cell-0 Corporation,
supra, 219 NLRB at 730 ]
i2 At the time of the hearing in July 1974, 25 written resignations were
found in the Union's files
[s ]hould these dues not be paid your employment at
Ex-Cell-O could be terminated." Thus, assuming that
this notification occurred immediately after the
signing of the contract in May 1972, the 28 resignees
did not learn until approximately a year to a year and
a half after they had tendered their resignations that
Respondent continued to regard them as members.
Thereafter, Respondent requested the Employer to
notify certain of these employees that they must pay
their delinquent dues within 72 hours or their
employment could be terminated under the contract.
The Employer, after checking with the respective
employees, advised Respondent that those employees
were not members of Respondent on May 1, 1972,
and thus were not obligated to maintain membership.
This issue of the membership status of 25 of the 34
employees involved herein as of May 1, 1972, was
submitted to an arbitrator (the status of the other 9
was not before him), who issued his award on July 31,
1973. He ruled that the 25 were members of the
Union on the critical date and required the Employer,
upon request, to enforce the maintenance-of-mem-
bership provision as to them. The Employer refused
to comply with the award. On March 9, 1973, and on
September 6, 1973, employees Paul Gillam and
Susanne Vida, respectively, filed the instant unfair
labor practice charges.
B. The Board's Original Decision
Except as to one employee,14 the Board adopted the
Decision of the Administrative Law Judge which held
that under General Electric 15 the restrictions upon
resignations set forth in Respondent's International
constitution did not constitute a bar to these employ-
ees' resignations. 16 Accordingly, the Board concluded
that 28 of the employees involved in this proceeding
had effectively resigned their memberships prior to
the operative date of the maintenance-of-member-
ship clause of the collective-bargaining agreement
13 Art II, sec 2, of the agreement provided , inter aim
Any employee covered by this Agreement who is a member of the
Union on May 1, 1972, or any employee who thereafter becomes a
member of the Union , shall as a condition of continued employment for
the life of this Agreement , maintain his membership in the Union to the
extent of tendering the periodic dues and initiation fees uniformly
required as a condition of acquiring or maintaining membership.
14 The Board , contrary to the Administrative Law Judge , found that
employee Ryan's oral resignation to Union President Roland effectively
terminated his union membership See In 11, supra
15 International Union, United Automobile, Aerospace and Agricultural
Implement Workers, UA W, and its Local No 647 (General Electric Company),
197 NLRB 608 (1972).
16 The Administrative Law Judge found that 25 employees who tendered
written resignations received by the Union prior to May 1, 1972, validly
resigned In addition , she held that two other resignations were effective,
although they were not found in Respondent's files, on the ground that the
Union failed to rebut the employees ' credited testimony tending to establish
prima facie receipt of their resignation letters. Ex-Cell-O Corporation, supra,
219 NLRB at 736
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Respondent therefore violated Section 8(b)(1)(A)
by threatening to cause their discharge for failure to
pay dues.
Concerning the remaining six employees, the Board
adopted the Administrative Law Judge's finding that
five of them never became members of Respondent,
and the membership of the final employee lapsed
when he dropped out of the unit and occupied a
supervisory position for a 3-year period. As these
employees were not members of Respondent on May
1, 1972, the Board held that Respondent further
violated Section 8(b)(1)(A) by threatening to cause
their discharge. No question as to the status of these
six employees is raised by the terms of the court's
remand. Our concluding comments, therefore, in-
volve only the 28 resignees.
C. Conclusions
It is now well established that where "there is no
evidence that the employees . . . either knew of or
had consented to any limitation on their right to
resign" union members are free to resign at will and
Section 7 of the Act protects their right to return to
work during a strike which had commenced while
they were union members.17 The first issue to be
resolved, therefore, is whether there is evidence in the
record indicating that the employees here either knew
of or had consented to any limitation on their right to
resign. In deciding this question, it is necessary to
examine all the surrounding circumstances which, in
this case, include the nature of the employees'
membership tie, the availability of information re-
garding Respondent's restrictions on resignation, and
the actions of Respondent in response to the resigna-
tions.
From the facts set forth above, it is clear that the
employees' membership ties here were minimal,
consisting solely of the signing of application-for-
membership cards. Indeed, the employees were not
even advised that they had become members until at
least a year and a half later when the maintenance-
17 Boeing Co, supra, 412 U S at 87-88, Granite State, supra, 409 U S. at
217-218 In those cases, the Court characterized the right to resign at will as
"the law which normally is reflected in our free institutions "
lA Our dissenting colleague mischaractenzes our decision, for we do not
"impl[y] that after the employees signed the membership cards they were
unaware that they were members " Rather , as set forth in the text above, we
find only that the employees ' membership ties were minimal, not nonexis-
tent Therefore , the submission of resignations by the employees was not
"paradoxical " Concerning our dissenting colleague's reliance on the
arbitrator 's finding that some of the employees involved herein received
strike benefits, we regard such conduct as compatible with our view that the
Union 's efforts during this period were directed toward gaining recognition
from the Employer and , consequently , the union-employee relationship was
significantly weaker than if the Union were an incumbent bargaining
representative Further, it has not been shown that receipt of strike benefits
was restricted to union members
19 In these respects , the instant case is clearly distinguishable from
N L R B v. International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America, AFL-CIO [John i Paulding, Inc ], 320 F 2d
of-membership clause was in effect. During the
period in question, Respondent was seeking to attain
recognition from the Employer and thus this was not
a situation where it could be said that the employees
were experienced in dealing with an incumbent
bargaining representative.18 Under these circum-
stances, we do not regard the mere signing of a union
application card as sufficient to constitute knowledge
of or consent to the limitations upon resignation set
forth in Respondent's International constitution. For,
these cards contained only a "pledge" that the
applicant would "observe the Constitution and laws
of this Union," and neither spelled out the constitu-
tional provision limiting a member's right to resign,
nor stated that any such limitations existed. Further,
the bare reference to the constitution alone is an
insufficient basis from which to infer knowing
consent to the unstated limitations on resignation, at
least where, as here, there is no evidence that
employees were provided with a copy of the constitu-
tion or otherwise informed of the requirements of the
provision governing resignation. In fact, as detailed
above, the evidence in the record, rather than
establishing employee knowledge of the provision in
question, indicates that copies of the International
constitution were not available at the Union's office
when these employees signed application cards and
thereafter submitted their resignations.19
Finally, we consider most significant the fact that
Respondent received 25 written resignations but did
not inform the employees that it considered the
resignations invalid until a year to a year and a half
later when the maintenance-of-membership clause
was in effect. Even if we found that the employees
knew of or had consented to Respondent's limitations
on their right to resign, a finding which the record
certainly does not support, considerations of elemen-
tal fairness would seem to require Respondent, after
receiving the resignations, to take some action to give
appropriate advice to the employees so that they
would have an opportunity to comply with Respon-
12 (C.A I, 1963), on which Respondent relies. In that case , 10 employees
submitted resignations to the union which were not timely under the same
10-day constitutional provision as that involved herein The Board found
that the employees ' resignations were effective and that the union violated
the Act by attempting to cause their discharge under a maintenance-of-
membership clause The court denied enforcement of the Board's Order,
holding that when an employeejoins a labor organization he waives his Sec
7 tight to refrain from union activity and "renders himself amenable to the
reasonable internal regulations of the organization with which he chooses to
cast his lot " (320 F 2d at 15 .) It is important to note , however, that in
Paulding "each employee was given a copy of the Union's Constitution and
Bylaws at the time he joined the Umon," and therefore there was "no
contention that any of the subject employees were unaware of[the 10-
day resignation ] provision " (320 F 2d at 16 ) Furthermore , in Paulding, the
employees had stronger membership ties, as they were dues-paying members
in good standing at the time of their resignations and the union was an
incumbent bargaining representative which had been a party to several
contracts
LOCAL 1384, AUTOMOBILE WORKERS 1049
dent's specific requirements prior to the operative
date of the union-security clause. Thus, it could well
be argued that Respondent's conduct in this regard
constituted a breach of its fiduciary duty to deal fairly
with employees 20 and that therefore Respondent is
now estopped from asserting that the resignations are
invalid.
We rely, however, on all of the above circumstanc-
es, i.e ., the tenuous nature of the employees' member-
ship ties, the lack of notice of limitations on the
employees' right to resign, and Respondent's failure
to inform the employees that their resignations were
ineffective, and conclude that the record fails to
establish that the employees here either knew of or
had consented to Respondent's limitations on their
right to resign.21 Accordingly, prior to the May 1,
1972, effective date of the maintenance-of-member-
ship clause, the employees were free to resign at will
by conduct calculated to clearly convey to Respon-
dent an unequivocal intent to sever the relationship.
All 28 employees involved in this proceeding satisfied
that test.22 We, therefore, find that these employees
had effectively resigned their memberships prior to
the operative date of the maintenance-of-membership
clause of the collective-bargaining agreement and
that Respondent violated Section 8(b)(1)(A) by
threatening to cause their discharge for failure to pay
dues.
Assuming arguendo that the employees had knowl-
edge of or had consented to Respondent's constitu-
tional provision and were bound by it, we find that
the resignations of at least 25 of the employees
involved herein became effective under the very
terms of that provision prior to the May 1, 1972,
contract date. For, we agree with the comment of the
court in the Pneumatic Scale case23 that "the union
might well be required to show that it was injured by
the prematurity of the resignation. Where the resigna-
tion was unmistakably adequate apart from this, it
seems perilously close to impermissible technicality
to say that a premature resignation does not become
effective when the proper time comes."
Here, Respondent has made no showing of preju-
dice resulting from the prematurity of the resigna-
tions. Indeed, it would be difficult to make such a
showing in regard to the 25 resignations which were
otherwise "unmistakably adequate," i.e., in writing,
signed, and in Respondent's possession at the time of
the hearing . Since those resignations were tendered
between September 1970 and February 1971, they
were pending, albeit not " sent," during the constitu-
tionally mandated 10-day period at the end of the
1970 and/or 1971 fiscal years.
Respondent's contention that these resignations
nevertheless did not become effective when the
"proper time [came]" because they did not comply
with the precise time and manner requirements of its
constitution24 rests on the kind of "impermissible
technicality" which an adjudicatory body cannot, in
good conscience, enforce.25 Accordingly, we con-
20 See N L R B v. Hotel, Motel and Club Employees' Union, Local 568,
AFL-CIO [Philadelphia Sheraton Corporation ], 320 F 2d 254, 258 (C.A. 3,
1963)
21 In the absence of supporting authority, we do not agree with our
dissenting colleague that it is "axiomatic " that the burden is on the General
Counsel to prove that "the Respondent concealed or misrepresented its
restrictions on resignations ." Rather than mquiring into Respondent's
motivation for its actions , we adhere to the Supreme Court's decisions in
Granite State and Boeing establishing that the proper standard is whether the
employees knew of or had consented to Respondent's restrictions on their
resignation right See fn 17, supra, and accompanying text Concerning the
burden-of-proof question , the Court specifically held in fn 5 of Granite State
that the union 's "practice" of accepting resignations only during an annual
I0-day escape period cannot be enforced because "there was no evidence that
the employees knew of this practice or that they had consented to its
limitation on their right to resign " (409 U S. at 217.) (Emphasis supplied )
The Court's "no evidence" language was reiterated in Boeing, 412 U S at 88
Since union restraints on resignations will not be enforced where there is "no
evidence" that the employees had proper notice, it must follow that the
burden is on Respondent to produce evidence indicating that the employees
had such notice , rather than on the General Counsel to produce evidence
indicating that they did not We believe that Respondent has the burden of
persuasion on this issue as well, as "the burdens of producing evidence and of
persuasion with regard to any given issue are both generally allocated to the
same party " McCormick , Evidence, ch 36 , sec 337, p. 788 (1972).
Respondent has not satisfied the latter burden because , as set forth above,
the record does not establish that the employees knew of or had consented to
Respondent 's limitations on their right to resign , and the dissent is inaccurate
in asserting that they agreed to such unknown restrictions by signing the
union cards Assuming arguendo that the burden of persuasion on this lies
with the General Counsel , we find that the General Counsel has shown by a
preponderance of the evidence that the employees here neither knew of nor
had consented to Respondent's restrictions on their resignation right. In this
connection , it is significant that our dissenting colleague does not dispute our
findings that the union application card neither spelled out the constitutional
provision limiting a member's right to resign nor stated that any such
limitation existed; employees were not provided with a copy of Respondent's
International constitution or otherwise informed of the resignation provi-
sion, copies of the constitution were not available at the Union 's office; and,
prior to the effective date of the maintenance -of-membership clause,
Respondent did not inform the employees that their resignations were
untimely Accordingly , the Union's failure to "attempt to conceal its
International constitution " is insufficient to support a finding of employee
knowledge and, as noted above, signature of union cards could not be
construed as consent to restrictions which were not disclosed
22 Thus , 25 written resignations were found in the Union's files, the
Administrative Law Judge credited the testimony of 2 employees that they
tendered written resignations and Respondent failed to rebut that evidence,
and employee Ryan's oral resignation was clearly acknowledged by Presi-
dent Roland
23 N LR B v Mechanical andAlhed Production Workers Union, Local 44,
AFL-CIO, Its New England Joint Board AFL-CIO, and R W D S U, AFL-
CIO [Pneumatic Scale Corporation], 427 F.2d 883, 885, fn. 5 (C A 1, 1970).
24 In addition to their prematurity , these resignations were not addressed
to the financial secretary of the local union, and some were not sent by
registered or certified mail, return receipt requested . But, as noted, these
resignations were all in the possession of Respondent Respondent did not
return them or inform the employees that the resignations were ineffective
for failure to meet the constitutional time and manner requirements
25 The dissent correctly notes that "if an untimely representation petition
is filed with the Board , we do not process it 'when the time comes' " The
difficulty with the analogy is that the Board informs the petitioning party of
the defect, whereas, in the instant case, it is undisputed that Respondent did
not notify the employees that the resignations were untimely The simple
practice of advising employees of defective resignations would , of course,
(Continued)
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elude that under Respondent's International consti-
tution these employees validly resigned, effective 60
days after the end of the applicable fiscal year (i.e.,
approximately March 1, 1971, or March 1, 1972),
were not members of Respondent on May 1, 1972,
and were therefore not required to pay dues under the
maintenance-of-membership clause.
Proceeding further with the assumption, arguendo,
that the employees here either knew of or had
consented to Respondent's limitations on their right
to resign, we now turn to consider the final issue
posed by the court of whether Respondent's restric-
tions are so reasonable as to fall within the proviso to
Section 8(b)(I)(A), as being the exercise of "the right
of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership
therein." Under the Supreme Court's Scofield deci-
sion,26 we view resolution of this issue as requiring an
inquiry into "the legitimacy of the union interest
vindicated by the rule and the extent to which any
policy of the Act may be violated."
Concerning the latter, there can be no question that
embodied in Section 7 is the right of employees to
refrain from concerted activities. Although there may
have once been a question as to whether an employee
loses his Section 7 rights upon becoming a union
member, the Court in Granite State refused to infer an
irrevocable waiver of the Section 7 right to refrain
from concerted activities notwithstanding the em-
ployees' participation in a strike vote and ratification
of strikebreaking penalties. There the strike was a
lengthy one and the Court's response to the union's
waiver argument was that an employee who initially
favored the strike had the right to change his mind in
view of new circumstances.27 Since those employees,
while union members, had not waived their right to
refrain from concerted activities, they had a Section 7
protected right to return to work during the strike
once they had resigned and thus dissolved the union-
member relationship.28
Here, as in Granite State, there was a lengthy strike,
lasting almost a year. Sixteen members resigned
shortly after it began and worked throughout the
strike. The others were on strike for periods ranging
from 1 to 6 months before resigning and returning to
work. Under the Supreme Court's Granite State
decision, these employees were not bound to observe
the strike for its duration merely by virtue of their
remove the basis for our dissenting colleague 's fear of "chaotic conditions in
union offices " Further, such a concern apparently was not shared by
Respondent , as 25 resignations were in its files at the time of the hearing
26 Scofield v N L R B, 394 U S 423,431 (1969)
27 Granite State, supra, 409 U .S. at 217
2s If a waiver of the Sec 7 right to refrain is not to be inferred from a
member's participation in a strike vote and ratification of strikebreaking
penalties, it must follow that that right is not lost merely upon becoming a
union member For that reason, we believe that the First Circuit's Paulding
decision , which relied on such a waiver theory (see fn 19 , supra), has not
status as union members at the strike's inception, and
their return to work was protected by Section 7 if they
first lawfully resigned. If they had not resigned and
therefore were still union members at the time they
returned to work, they would have remained within
the ambit of the Union's control.29 Thus, the exercise
of the Section 7 right to return to work during a strike
which had commenced while an employee was a
union member is restricted to the extent that the
member must first resign. Respondent's constitution-
al provision further impinges upon the unfettered
exercise of that Section 7 right by limiting the
circumstances under which a member may resign. We
must consider, therefore, Respondent's asserted justi-
fications for the curtailment of employees' statutory
rights.
Respondent contends that this rule, which "requires
that those who would join the Union sign up for a
year at a time," advances "stability of membership
relations." Specifically, Respondent argues that this
rule is necessary to promote solidarity in relations
with the employer, particularly during a strike; to
protect against raiding from other labor organiza-
tions; and to reduce the possibility of wildcat strikes
and premature schisms resulting from divisions
internal to the union.
We must reject, at the outset, Respondent's descrip-
tion of its rule as requiring that "those who would
join the Union sign up for a year at a time." Although
Respondent's rule provides an annual 10-day escape
period within which resignations are to be sent, such
resignations do not become effective for a minimum
of 60 days. Thus, for employees who join shortly after
the end of the fiscal year, Respondent's rule requires
membership for 14 months, not 12 as claimed.30
Furthermore, if the employer has been authorized
to check off the employee's dues, the resignation does
not become effective until the expiration of such
authorization, or upon the termination of the 60-day
period, whichever is later. Since an employee's
checkoff authorization can be made irrevocable for a
year,31 the net result is that Respondent's provision
operates to require union membership for as long as 2
years. For example, under this provision an employee
who joins on January 1 and authorizes checkoff of his
dues on December 15 could resign during the 10-day
escape period at the end of the month, but such
resignation would not become effective until Decem-
survived the Supreme Court's Granite State opinion In this regard, it is
significant that the First Circuit's decision in Granite State, which was
reversed by the Supreme Court, relied on the same rationale as Paulding
Compare N LR B v Granite State Joint Board, Textile Workers Union of
America, Local 1029 [International Paper Box Machine Co ], 446 F 2d 369,
373 (C A I, 1971), with 320 F 2d at 15.
29 N LR B v Allis-Chalmers Manufacturing Co., 388 U S. 175 (1967)
30 In its briefs, Respondent has offered no justification for the 60-day
waiting period.
3i Sec 302(c)(4)
LOCAL 1384, AUTOMOBILE WORKERS 1051
her 15 of the following year. Respondent has ad-
vanced no reason for requiring a waiting period of as
long as a year before a resignation becomes effective.
We decline to speculate on possible explanations, but
we note the following additional effect of making the
validity of a resignation turn on the termination of a
checkoff authorization. Since the collective-bargain-
ing agreement required the maintenance of member-
ship "to the extent of tendering the periodic dues and
initiation fees uniformly required as a condition of
acquiring or maintaining membership," an employee
might wish to resign his "full membership" and fulfill
his obligation under the contract by becoming a
"financial core" member and having the employer
check off his dues.32 Apparently under Respondent's
provision, this option is not available because the
resignation would not become effective until the
checkoff authorization was terminated as well.
Regarding the Union's interest in maintaining
solidarity during a strike, the Supreme Court, in
Granite State, specifically held that that interest was
insufficient to overcome the employees' Section 7
right to return to work after an effective resignation,
but the Court left open the question of whether a
different result would obtain if there were restraints
on the resignation of members.33 Although such
restrictions are presented here, Respondent's limita-
tions upon the member are broader than those which
are necessary to serve the union interest because
resignations are barred during nonstrike periods as
well, except for the last 10 days of the year.34 Not
only does the rule lack precise tailoring to the Union's
needs, but also gives no regard to the important
considerations that the Supreme Court has explained
may necessitate an employee's resignation during a
strike:
Events occurring after the calling of a strike may
have unsettling effects, leading a member who
voted to strike to change his mind. The likely
duration of the strike may increase the specter of
hardship to his family; the ease with which the
employer replaces the strikers may make the strike
seem less provident.35
However, if these factors do not arise during the
period of December 22-31 of any given year, the
employee will be unable to deal with them because he
31 See N L R B v General Motors Corporation, 373 U.S 734 (1963),
Hershey Foods Corporation, 207 NLRB 897 (1973), enfd 513 F 2d 1083 (C.A.
9, 1975), Union Starch & Refining Company, 87 NLRB 779 (1949), enfd. 186
F.2d 1008 (C.A. 7, 1951), cert. denied 342 U S. 815
The analogy between the constitutional restrictions on resignations and
the Board 's contract - bar rules is totally inappropriate. There is and can be
no similarity between private contracts which compel union memberhip and
public policy as to the reasonable period during which a collective-bargain-
ing agreement may effectively bind employees to union representation (but
not union membership).
will be barred from resigning. And even if those
factors do arise during the last 10 days of the year,
Respondent's waiting period requirement would
operate to negate any possibility of a return to work
free from union sanction for anywhere from 2 to 12
months thereafter.
In sum, we cannot view this constitutional provi-
sion as affording a reasonable accommodation be-
tween the Union's and the employees' conflicting
interests inasmuch as it compels continued member-
ship for as long as 2 years, is not narrowly tailored to
the Union's legitimate needs, and accords no weight
to the competing considerations which may necessi-
tate resignation during a strike. While we are not
presented with and do not rule on the question of
what, if any, provision in a union's constitution or
bylaws limiting the time or manner of resignation
would pass muster under the Act, we decide today
that on balance Respondent's provision must bow to
the employees' exercise of their Section 7 right to
refrain from concerted activities following resigna-
tion from a union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby affirms as its Order the Order
heretofore entered in this proceeding on July 30,
1975.
MEMBER JENKINS, dissenting:
In finding that Respondent violated Section
8(b)(1)(A) of the Act by threatening to cause the
discharge of 34 employees for failure to pay dues in
accordance with a valid maintenance-of-membership
clause in a collective-bargaining agreement, the
majority has, in effect, abrogated the intent and
significance of the proviso to that section. Section
8(b)(1)(A), so far as relevant, provides that:
It shall be an unfair labor practice for a labor
organization or its agents-
(1) to restrain or coerce (A) employees in the
exercise of the rights guaranteed in section 7:
Provided, That this paragraph shall not impair the
right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of
membership therein ... .
33 Granite State, supra, 409 U S at 217-218.
34 Similarly , assuming arguendo that Respondent has a legitimate interest
in having its members amenable to discipline "until the year is up" in order
to deter raiding and reduce tensions within the Union, the rule is overly
broad in compelling membership not for the I year alleged to be necessary,
but for as long as 2 years . Also, the selection of the last 10 days of the year as
the time when the resignation right must be exercised is not particularly
suitable, as employees are likely to be out of town for the holidays.
35 Granite State, supra, 409 U.S. at 217.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The nature of the remand by the court of appeals
demonstrates that the cou'•t recognized that the
Union has a legitimate interest in knowing what its
membership is, and in prescribing orderly routes for
resignation. The court wanted the Board to determine
whether the Union in effect misrepresented or
concealed its rules relating to resignation from
membership and whether a rule which requires those
who would join the UAW to sign up for a year at a
time is reasonable.
Briefly, it is undisputed that at least 30, of the
relevant 34, employees of Ex-Cell-O in 1968, 1969, or
1970 each signed a "Special Official Application for
Membership" card which Respondent uses for all
employees desiring UAW membership. At the time
these employees signed the cards, there was no
contract in existence between Respondent and the
Employer, and no union dues were required. Those
cards contained a pledge that the applicant would
"observe the Constitution and laws of this Union."
The constitution provided that any member desiring
to resign from the Union shall do so during the last 10
days of the year. On September 3, 1970, the UAW
struck in protest of the Employer's refusal to bargain,
and the strike continued for a year. At various times
during the stake, 27 employees submitted resignation
letters to the Union and 1 employee orally informed
the Union's president of his resignation. It is undis-
puted that none of these "resignations" was timely
under the UAW constitution.
On May 8, 1972, the Employer and UAW executed
a collective-bargaining agreement containing a main-
tenance-of-membership clause. The UAW notified
the employees that they owed dues and requested the
Employer to notify them that their employment could
be terminated for failure to pay dues. The Employer
refused and, pursuant to the collective-bargaining
agreement, an arbitrator ruled that 25 of the employ-
ees here in issue were members and he required that
the Employer enforce the maintenance-of-member-
ship clause as to those employees. The Employer
refused to comply with the arbitration award and two
employees filed unfair labor practice charges with the
Board.
The Board found that with respect to 28 emnloyees
Respondent violated Section 8(b)(1)(A) by threaten-
ing that they were subject to discharge for failure to
pay union dues. The Court of Appeals for the Seventh
Circuit remanded the case to the Board for a
determination of whether the restriction of resigna-
tion was effectively agreed to by an employee when
he signed the membership card which purported to
incorporate by reference the union constitution, and
whether a restriction of resignation to a 10-day period
.s so reasonable in the time allowed as to fall within
the proviso to Section 8(b)(1)(A).
With respect to the first query of the court of
appeals, it is obvious that the resignation restrictions
were agreed to by the signatures on the membership
cards, for it is presumed that employees know what
they are signing, absent any evidence of fraud or
misrepresentation. All employees involved voluntari-
ly signed membership cards which contained a clear
and unequivocal reference to the UAW's Internation-
al constitution, which in turn states with preciseness
the rules governing resignation. The majority does
not contend that the UAW obtained the signatures
by fraud or deceit, yet they find that the members
were not aware of the resignation restrictions because
the UAW did not supply them with a copy of the
constitution and bylaws. The facts, however, do not
demonstrate that Respondent made any attempt to
conceal its International constitution, which applies
to over 1 million UAW members, from the 28
employees in issue.36 Thus, the membership cards
specifically incorporate by reference the provisions of
the UAW's International constitution. There exists
no inconsistency between the two documents, and the
provisions of the constitution "should be interpreted
so as to give them some effect rather than no effect."
Corbin, Contracts, ch. 24, sec. 548, p. 181(1960). The
UAW has established the existence of the voluntarily
signed membership cards, containing references to
the International constitution. We cannot require it
to do more. "[T]he party who has the burden of
pleading a fact will have the burden of producing
evidence . . . of its existence as well." McCormick,
Evidence, ch. 36, sec. 337, p. 785, 2d ed. (1972). It is
axiomatic that the General Counsel has the burden of
proving that Respondent concealed or misrepresent-
ed its restrictions on resignations. It is clear that the
General Counsel has not met this burden, and the
attempt by the majority to shift the burden of proof to
Respondent cannot withstand judicial scrutiny.
The majority also implies that after the employees
signed the membership cards they were unaware that
they were members. Such a statement is paradoxical,
for why would they attempt to resign if they did not
know they were members? Furthermore, any sup-
posed doubt as to their membership status did not
prevent several of them from receiving UAW strike
benefits. In fact, it appears that at least one employee
continued to receive strike benefits even after he
allegedly "resigned."
My colleagues claim that I have mischaracterized
their decision, in that they are finding only that the
employees' membership ties were minimal. What
"minimal" membership means is not clear, to me at
36 The only probative testimony in this regard is the statement of one In addition, the arbitrator's report indicates that another employee did read
employee who was told that there was no copy of the constitution available the constitution
LOCAL 1384 , AUTOMOBILE WORKERS 1053
least, and the majority fails to define this obscure and
uncertain concept. The maj -)rity further states that
prior to the time the Union became the incumbent
bargaining representative the union-employee rela-
tionship was "significantly weaker." No facts, ratio-
nale, or legal justifications are given in support of this
conclusion. Indeed, it may well be argued that during
the struggle for recognition the converse would be
true. It must be remembered that the Union was
certified in 1965, and the Employer's unlawful refusal
to recognize the Union resulted in protracted litiga-
tion.
The majority states that, even if the resignations are
untimely and did not comply in other respects with
the requirements of the constitution, they neverthe-
less became timely when the "proper time came,"
because they had been sent to the Union, which did
not inform the employees of the untimeliness. This
contention must also be rejected. If the resignations
do not meet the prescribed rules, the Union is legally
entitled to disregard them, even though it may be
argued that as a matter of courtesy the Union should
have informed the employees of the defects. The
majority states that the reliance by the Union on the
untimeliness of the resignations rests on the kind of
"imperinissible technicality" which an adjudicatory
body cannot, in good conscience, enforce. The
majority's position would have the effect of creating
chaotic conditions in union offices, if the Union were
required to maintain files of untimely resignations
and to inform those members whose untimely resig-
nations were on file of the time when the resignations
became timely. Indeed, this Board does not indulge
the practice suggested by the majority. For example,
if an untimely representation petition is filed with the
Board, we do not process it "when the time comes."
The second query of the court of appeals concerns
the reasonableness of the Union's limitations on
resignations. I am puzzled by the determination of
the majority that the case of N.L.R.B. v. Granite State
Joint Board, Textile Workers Union ofAmerica, Local
1029 [Intl. Paper Box Machine Co.], 409 U.S. 213
(1972), is somehow dispositive of the issues in the
instant case. In Granite State, the Supreme Court held
that "[w ]here a member lawfully resigns from a union
and thereafter engages in conduct which the union
rule proscribes, the union commits an unfair labor
practice when it seeks enforcement of fines for that
conduct." That really begs the question, for if all
parties in the present case agreed that the employees
effectively resigned their union membership, there
would be no need for my dissenting opinion. The
instant case arises in the different context of a union's
effort to invoke its rights under a maintenance-of-
membership provision of a collective-bargaining
agreement against members who earlier tendered
:esignations which did not comply with the UAW
constitution. The question at hand is whether the rule
which permits resignations from membership only
during the last 10 days of the year provides so
unreasonable a time limit as to conflict with the
proviso of Section 8(b)(1)(A) permitting unions to
prescribe their own rules for acquiring and retaining
membership.
The majority rejects the Union's description of its
rule as requiring that "those who would join the
Union sign up for a year at a time." The majority
correctly notes that resignations do not become
effective for 60 days and that, for employees who join
shortly after the end of the year, the rule requires
membership for 14 months, not 12. What the majority
failed to mention is that for employees who join
shortly before the end of the year the rule requires
membership for as little as 2 or 3 months. The
majority also interjects an improbable and largely
irrelevant hypothetical situation where union mem-
bership may be required for as long as 2 years, where
an employee joins on January 1 and authorizes dues
checkoff on December 15. As a result of those
actions, his resignation would not become effective
until December 15 of the following year. In the first
place, none of the employees involved was on dues
checkoff and, moreover, the authorization of dues
checkoff for a year, which the majority apparently
does not find objectionable, would bind the employee
even if the Union had an unlimited resignation
policy.
In finding the resignation restrictions unreasonable,
my colleagues are substituting their judgment for the
judgment of the parties, i.e., the Union and the
members who voluntarily accept the limitations, as
well as the benefits, of unionism. The 10-day-per-year
period is, as the Union points out, less restrictive than
the Board's own contract-bar rules which place
limitations on employee self-determination in the
name of labor relations stability. The Board's rule
usually operates to permit employees to challenge
their bargaining representative only during a 30-day
period every 3 years. And when the Board holds an
election, the results are binding for a year, to the
extent the Board will not run another election within
a year of the first. The majority argues that because
our contract-bar period is a "public policy" and the
Union's withdrawal period is a "private contract"
they cannot be analogous. But what is in issue is the
reasonableness of a recurring period within which to
alter a commitment, and, in the absence of an
explanation which my colleagues do not provide, I
would have thought that any such period prescribed
by this Board would necessarily be deemed reason-
able by the Board. The majority's attempt totally to
separate union membership from union representa-
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion is illusory at best, for they do not quarrel with the
reasonableness of a dues-checkoff authorization for a
year, or with contracts which could require employ-
ees to pay union dues or their equivalent for periods
substantially longer than that.
In sum , I find the rules set forth in the UAW's
constitution relating to membership reasonable and
within the protection of the proviso to Section
8(b)(1)(A) of the Act, and very similar to our own
time limitations. I note that the majority has not
indicated what standards, if any, regarding resigna-
tions they would approve . I also find that the
employees involved voluntarily signed union mem-
bership cards which unequivocably referred to the
Union's constitution , and that the General Counsel
has not sustained his burden of proving fraud or
concealment on the part of the UAW. Accordingly, I
would dismiss the complaint.