Newspaper Guild Local 3 (New York News)

National Labor Relations Board - Board Decisions

Aug 24, 1984

271 N.L.R.B. 1251 (N.L.R.B. 1984)

NEWSPAPER GUILD LOCAL 3 (NEW YORK NEWS)
Newspaper Guild of New York, Local 3, TNG,
AFL-CIO, CLC and New York News, Inc.
Case 2-CB-7177
24 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 31 December 1980 Administrative Law
Judge Max Rosenberg issued the attached decision.
The General Counsel, the Respondent, and the
Charging Party filed exceptions and supporting
briefs. The Respondent also filed an answering
brief. '
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The judge found that the Respondent violated
Section 8(b)(1)(A) of the Act by threatening mem-
bers with the loss of contractual benefits, the for-
feiture of union representation in grievance pro-
ceedings, and the imposition of court-enforceable
fines if they resigned from the Respondent. We
have considered the decision and the record in
light of the exceptions and briefs and have decided
to affirm the judge's findings. 2
The judge did not make any findings concerning
the validity of the Respondent's constitutional pro-
vision prohibiting resignations during a strike or
lockout or when one appears imminent, or to the
Respondent's filing intraunion charges against and
imposing fines on employees Ray McInerney and
Hector Ilarazza for returning to work during a
strike.3 For the reasons set forth below, we find
that the Respondent's constitutional provision un-
reasonably interferes with its members' Section 7
rights, and that the filing of charges and imposition
of fines pursuant to the provision violated Section
8(b)(1)(A) of the Act.
The pertinent facts show that article X, sections
13(c) and 15, of the Respondent's constitution were
amended by the Respondent's International body
during its 1973 and 1974 conventions to provide
that "no resignation or withdrawal may be accept-
ed during a strike or lockout, or at a time when a
I The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
2 No exceptions were taken to these findings.
3 The judge referred these issues to the Board in view of Machinists
Local 1327 (Dalmo Victor), 263 NLRB 984 (1982) (Dalmo Victor 11),
which was before the Board pursuant to the Ninth Circuit's remand of
231 NLRB 719 (1977) (Dalmo Victor I), enf. denied and remanded 608
F.2d 1219 (9th Cir. 1979).
271 NLRB No. 192
strike or lockout appears imminent." 4 On 9 Febru-
ary 19785 the parties commenced contract negotia-
tions; their current agreement was to expire on 30
March. During the period 8 to 21 March, 15 mem-
bers of the Respondent submitted resignations. The
Respondent sent letters to each of the resignees ac-
knowledging receipt of their letters and notifying
them that the procedures of article X, section 15,
of the constitution were to be followed. The Re-
spondent also enclosed a copy of its constitution in
each letter.
As set forth in the judge's decision, the Respond-
ent's unit chairman, Vallila, and grievance chair-
man, O'Keefe, visited employees on 16 March and
stated that resigning members would lose their con-
tract benefits and be fined. On 17 March the Re-
spondent sent letters to its members informing
them that a strike authorization vote would be held
on 22 March. On that date the Respondent's mem-
bers voted 917 to 36 to authorize a strike.
The judge also found that the Respondent's as-
sistant treasurer, Diamond, informed several em-
ployees on 23 March that the Respondent would
refuse to handle the grievances of those employees
who submitted resignations from the Respondent.
The Respondent received several resignations
thereafter, including those of McInerney on 7 April
and Ilarazza on 5 June. 6 On 12 April the Respond-
ent acknowledged receipt of McInerney's letter,
notified him of the applicability of article X, sec-
tions 13(c) and 15, of the constitution, and refused
to accept his resignation in light of the 22 March
strike authorization vote. The Respondent's execu-
tive committee decided on 15 May to accept the 15
resignations submitted prior to the strike vote, but
rejected those resignations tendered after the vote
because under article X, sections 13(c) and 15, a
strike or lockout appeared imminent at that time.
Mclnerney was notified on 18 May that his resig-
nation had been rejected. On 23 May the executive
committee adopted a resolution that all resignations
submitted after the 22 March strike authorization
vote would be rejected because of the imminency
of a strike.
On 13 June the Respondent commenced a strike
against the News which ended on 17 June. During
the strike, McInerney and Ilarazza crossed the
picket line and performed their normal work
duties. On 31 August Ilarazza returned two strike-
benefit checks he had received and advised the Re-
4 The adoption of this language was discussed in articles appearing in
the 17 August 1973 and 2 August 1974 editions of The Guild Reporter,
the TNG newspaper
5 All dates are in 1978 unless otherwise indicated.
R Mclnerney became a member of the Respondent in 1957, Ilarazza in
April 1974.
1251
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent of his 5 June resignation letter. The Re-
spondent informed Ilarazza on 15 September that
his resignation had been rejected under article X of
the constitution. McInerney and Ilarazza were noti-
fied on 12 December that disciplinary proceedings
had been instituted against them for having crossed
the picket line at the News and that the charges
could result in the imposition of penalties. On 18
April 1979 the Respondent informed McInerney
and Ilarazza that they had been found guilty of
violating the constitutional provision banning mem-
bers from crossing sanctioned picket lines and that
they were being assessed a fine in the amount of
their earnings during the strike.
In Dalmo Victor II, supra, a Board plurality held
that "a union rule which limits the right of a union
member to resign only to nonstrike periods consti-
tutes an unreasonable restriction on a member's
Section 7 right to resign." Id., 263 NLRB at 986. 7
In Pattern Makers (Rockford-Beloit), 265 NLRB
1332 (1982), enfd. 724 F.2d 57 (7th Cir. 1983), a
Board majority held that the union's rule restrict-
ing resignations during a strike or when a strike is
imminent was unreasonable. Our recent decision in
Machinists Local 1414 (Neufeld Porsche-Audi), 270
NLRB 1330 (1984), is controlling here. In that case
the Board adopted the concurring view of Member
Hunter and former Chairman Van de Water in
Dalmo Victor II, and held that any restriction on a
union member's right to resign is unreasonable and
invalid. Accordingly, for the reasons set forth in
Neufeld Porsche-Audi, we find that article X, sec-
tions 13(c) and 15, are unlawful and cannot be en-
forced. Therefore, the resignations of McInerney
and Ilarazza were effective on their submission and
the Respondent's institution of charges and imposi-
tion of fines on them for returning to work during
the Respondent's strike at the News violated Sec-
tion 8(b)(1)(A) of the Act.8
In view of our finding that the Respondent's rule
governing resignations is invalid, we further con-
clude that the Respondent's notification of mem-
bers that article X, sections 13(c) and 15, were ap-
plicable to resignations, and its refusal to accept
I Member Zimmerman and former Member Fanning found that a rule
which restricts a union member's right to resign for a period not to
exceed 30 days after the tender of such a resignation would be permissi-
ble. In a concurring opinion, Member Hunter and former Chairman Van
de Water would have found invalid any restriction imposed on a mem-
ber's right to resign or otherwise refrain from Sec. 7 activities. Former
Member Jenkins dissented, finding that the union's constitutional provi-
sion prohibiting resignations during a strike or within 14 days preceding
its commencement was a reasonable restriction on members' resignations.
8 Since we find that secs. 13(c) and 15 of art. X are invalid on their
face, we find it unnecessary to decide whether the employees had suffi-
cient notice of the restrictions on resignation.
valid resignations violated Section 8(b)(l)(A) of the
Act.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. By maintaining in its constitution the provi-
sions of article X, sections 13(c) and 15, which pro-
hibit resignations during a strike or lockout or
when one appears imminent; by threatening mem-
bers with the loss of contractual benefits, the for-
feiture of union representation in grievance pro-
ceedings, and the imposition of court-enforceable
fines if they resigned their membership in the
Guild; by notifying its members that article X, sec-
tions 13(c) and 15, of its constitution were applica-
ble to resignations; by refusing to accept valid res-
ignations; and by filing intraunion charges against
and imposing fines on former members Ray McIn-
erney and Hector Ilarazza for their postresignation
crossing of a picket line and working during a
strike, the Respondent restrained and coerced em-
ployees in the exercise of the rights guaranteed
them by Section 7 of the Act, and thereby engaged
in, and is engaging in, unfair labor practices within
the meaning of Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Newspaper Guild of New York,
Local 3, TNG, AFL-CIO, CLC, New York, New
York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Maintaining in its constitution the provisions
of article X, sections 13(c) and 15, which prohibit
resignations during a strike or lockout or when one
appears imminent.
9 Member Zimmerman agrees that the Respondent by its enforcement
of a rule prohibiting members from resigning during a strike or lockout,
or at a time when a strike or lockout appears imminent, violated Sec.
8(b)(1)(A). However, he finds the violation only for the reasons expressed
by the Board majority in Rockford-Beloit, supra, and his concurring opin-
ion in Neufeld Porsche-Audi, supra.
In order to effectuate the policies of the Act, we shall order the Re-
spondent to rescind the unlawful postresignation fines, and to refund any
money paid to it as a result of such fines, with interest. See Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962). Since we find that the mere maintenance of the Respondent's
constitutional provision restrains and coerces employees from exercising
their Sec. 7 rights, we shall order the Respondent to remove the provi-
sion from its constitution. Engineers d[ Scientists Guild (Lockheed-Califor-
nia), 268 NLRB 311 (1983). Also, we shall order the Respondent to post
the notice attached as an appendix to this Decision and Order.
1252
NEWSPAPER GUILD LOCAL 3 (NEW YORK NEWS)
(b) Restraining or coercing employees and mem-
bers by threatening them with the loss of contrac-
tual benefits, the forfeiture of union representation
in grievance proceedings, and the imposition of
court-enforceable fines if they resigned their mem-
bership in the Guild; by notifying them that article
X, sections 13(c) and 15, of its constitution are ap-
plicable to resignations; by refusing to accept valid
resignations; and by filing intraunion charges
against and imposing fines on former members for
their postresignation conduct.
(c) 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) Remove from its constitution the provisions
of article X, sections 13(c) and 15, which prohibit
resignations during a strike or lockout or when one
appears imminent.
(b) Rescind the fines levied against Ray Mclner-
ney and Hector Ilarazza because of their postresig-
nation work for New York News, Inc., during the
June 1978 strike, and refund to them any money
they may have paid as a result of such fines, plus
interest.
(c) Remove from the records of such employees
any reference to fines levied against them, and
notify them, in writing, that this has been done.
(d) Post at its business office and meeting halls
copies of the attached notice marked "Appen-
dix."'1 0 Copies of the notice, on forms provided by
the Regional Director for Region 2, 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.
(e) Mail to the Regional Director for Region 2
signed copies of the notice for posting by New
York News, Inc., if the Company is willing, in
places where notices to employees are customarily
posted. Copies of the notice furnished by the Re-
gional Director, after being signed by the Respond-
ent's authorized representative, shall be returned
forthwith to the Regional Director.
'O 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."
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT restrain or coerce employees and
members in the exercise of the rights guaranteed
them by Section 7 of the National Labor Relations
Act by giving force or effect to the provisions of
article X, sections 13(c) and 15, of our constitution
which prohibit resignations during a strike or lock-
out or when one appears imminent.
WE WILL NOT restrain or coerce employees and
members by threatening them with the loss of con-
tractual benefits, the forfeiture of union representa-
tion in grievance proceedings, and the imposition
of court-enforceable fines if they resign their mem-
bership; by notifying them that article X, sections
13(c) and 15, of our constitution are applicable to
resignations; by refusing to accept valid resigna-
tions; and by filing intraunion charges against and
imposing fines on former members for their postre-
signation conduct.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act,
except to the extent that such rights may be affect-
ed by an agreement requiring membership in a
labor organization as a condition of employment
authorized in Section 8(a)(3) of the Act.
WE WILL remove from our constitution the
provisons of article X, sections 13(c) and 15, which
prohibit resignations during a strike or lockout or
when one appears imminent.
WE WILL rescind the fines levied against Ray
McInerney and Hector Ilarazza because of their
postresignation work for New York News, Inc.,
during the June 1978 strike, and refund to them
any money they may have paid as a result of such
fines, plus interest.
WE WILL remove from the record of such em-
ployees any reference to fines levied against them,
and notify them, in writing, that this has been
done.
NEWSPAPER GUILD OF NEW YORK
LOCAL 3, TNG, AFL-CIO, CLC
1253
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
MAX ROSENBERG, Administrative Law Judge. This
proceeding was tried before me in New York, New
York, on December 18 and 19, 1978, and January 15 and
16, 1979, on an amended complaint filed by the General
Counsel of the National Labor Relations Board and an
answer interposed thereto by Newspaper Guild of New
York, Local 3, TNG, AFL-CIO, CLC' (the Respondent
or the Guild).2 At issue is whether Respondent violated
Section 8(b)(1)(A) of the National Labor Relations Act
by certain conduct to be detailed hereinafter. Briefs have
been received from the General Counsel, The News, and
the Respondent, which have been duly considered.
On the entire record made in this proceeding, includ-
ing my observation of the demeanor of the witnesses
who testified, I make the following
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
New York News, Inc. (The News), a New York cor-
poration with its principal office and place of business in
New York, New York, is engaged in the publication, cir-
culation, and distribution of The New York News, a
daily newspaper in the Greater New York City area.
During the annual period material to this proceeding,
The News derived gross revenues in excess of $200,000,
held membership in and subscribed to various interstate
news' services, including the Associated Press, published
various nationally syndicated features, including the col-
umns of Rex Reed, Jimmy Breslin, Pete Hamill, and
Dick Young, and advertised various nationally sold
products, including General Motors Corporation's vehi-
cles. During the same period, The News purchased and
received at its New York, New York facility, goods and
materials valued in excess of $50,000 directly from points
located outside the State of New York. The complaint
alleges, the answer admits, and I find that The News is
an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is undisputed and I find that Respondent is a labor
organization within the purview of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel contends that Respondent violat-
ed Section 8(b)(1)(A) of the Act 3 when, on March 16,
i Respondent's name appears as amended at the hearing.
2 The complaint, which issued on May 10, 1978, is based on a charge
which was filed on March 16, 1978, and served on March 17, 1978.
3 In pertinent part, this section provides that:
(b) It shall be an unfair labor practice for a labor organization or
its agents -
(I) 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 acquistion or retention of membership
therein ....
Sec. 7, in relevant part, provides:
1978,4 and on various dates thereafter, it threatened em-
ployees of The News with fines if they resigned their
membership in the Guild and if they refused to honor a
picket line established by that labor organization at The
News in the event of a work stoppage, or if the employ-
ees declined to support a strike authorized by the Guild
against The News. The affirmative pleadings further
allege that the Guild engaged in conduct violative of the
foregoing Section by threatening employees of The
News on March 16 that they would lose their collective-
ly bargained contractual benefits if they defected from
the Guild's ranks, and, on March 23, by threatening that
the Guild would refuse to represent them in grievance
proceedings if they resigned from membership in that
labor entity. Finally, the General Counsel asserts that
Respondent offended the provisions of Section 8(b)(1)(A)
on December 14, when it summoned employees of The
News to face intraunion charges for the violation of cer-
tain provisions of the Guild's International constitution
by having worked during a strike called by the Guild de-
spite the fact that those employees had submitted their
resignations from membership in that labor organization
prior to engaging in such work, and by imposing fines on
those employees on April 18, 1979, as a result of said
violation. For its part, Respondent denies the commission
of any labor practices banned by the statute and moves
for dismissal of the complaint in its entirety.
The Guild, whose jurisdiction encompasses the Great-
er New York City area as well as portions of New
Jersey and Connecticut, represents approximately 6500
employees in the news publishing industry. Since 1938,
the Guild has been the collective-bargaining agent for a
unit of employees at The News which, at the times mate-
rial herein, numbered between 1300 and 1400 individuals.
Following negotiations in 1975, The News and the Guild
executed a labor compact covering this unit which was
effective from March 31, 1975, to March 30, 1978. This
agreement, as well as the previous ones, contained a
union-security provision which required that, as a condi-
tion of employment, all new employees were required to
become members of the Guild not later than 30 days fol-
lowing their employment. The record discloses and I
find that, upon receiving the names of new hires, the
Guild mailed letters to these applicants containing an ap-
plication for membership in the Guild and a dues-check-
off form. Upon their completion and return, the Guild
then mailed a copy of its International's constitution and
bylaws to the new members. 5
In November 1977, the Guild commenced to draft its
bargaining demands upon The News in anticipation of
the expiration of the current contract between the parties
Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, and shall have the right to refrain from any or all such
activities ....
4 Unless otherwise indicated, all dates herein fall in 1978.
5 The contract between the parties exempted certain employees of The
News from Guild membership. However, the agreement required these
employees, approximately 100 in number, to pay a representation fee to
the Guild equal to the dues levied on members.
1254
NEWSPAPER GUILD LOCAL 3 (NEW YORK NEWS)
on March 30. On February 9, the principals met in nego-
tiations for the first time. During this colloquy, the Guild
laid its contract proposals on the table and pressed for an
early agreement. During that session, representatives of
The News agreed to hasten the bargaining process but
reported that they needed time in which to formulated
their counterproposals. A second meeting was held on
March 9 at which The News presented its bargaining de-
mands and also raised an issue regarding the unit place-
ment of many employees who were then included in the
contractual bargaining unit. In this connection, The
News had filed a petition with the National Labor Rela-
tions Board on March 9 seeking a clarification of the ex-
isting unit, together with the New York Times and the
New York Post, which involved approximately 800 em-
ployees in all three units. No consensus was reached on
an agreement at the March 9 session and the meeting
was adjourned. On March 14, Gregory Thornton, the di-
rector of employee relations for The News, drafted a
letter to all employees which was posted on the bulletin
boards. This document recited that a series of questions
had surfaced during the preceding days regarding the
unit placement of certain alleged supervisory, managerial
and confidential employees at The News. The letter
went on to relate that the matter had been submitted to
the National Labor Relations Board on March 9 for res-
olution in the hope that contract negotiations with the
Guild could be facilitated.
Meanwhile, beginning on March 8 and continuing
through March 21, 15 unit employees sent letters to the
Guild in which they submitted their resignations from
that labor organization. In those letters, the employees
also manifested their intention to continue to pay the
Guild amounts of money equal to the periodic dues and
fees required of members as prescribed under the existing
collective-bargaining agreement. On receipt of the fore-
going resignations, an official of the Guild dispatched a
form letter to each of the resignees which acknowledged
receipt of their letters and concluded by stating:
Please be advised that the constitution of the News-
paper Guild outlines certain procedures to be fol-
lowed for withdrawal or resignation of membership.
We enclose a copy of the constitution for your in-
formation, and you will find the pertinent portion to
be under Article X, Section 15.
With regard to resignations from membership in the
Guild, article X, section 15 of the International's consti-
tution provides:
Any offer to withdraw or to resign from member-
ship in the Guild other than for the reasons set
forth in Section 13 of this Article (which relates to
a member who withdraws from the Guild due to his
or her ineligility to remain in the unit) shall be sub-
mitted in writing to the governing board of the
Local, together with the reasons, in detail, for such
contemplated withdrawal or resignation. The gov-
erning board of the Local shall thereupon inquire
into the causes and vote on whether such with-
drawal or resignation shall be accepted or rejected.
Any acceptance shall always be conditioned upon
full payment of all financial obligations due and
owing to the Guild. Upon rejection of any offer to
withdraw or resign, the membership obligations of
the member making such offer shall continue in full
force and effect. A member may appeal rejection of
his or her resignation to the Local membership. A
copy of the offer to withdraw or resign, together
with the action taken by the Local thereon, shall be
forwarded to the IEB (International Executive
Board). Such action shall not become final until ap-
proved by the IEB. No resignation or withdrawal
may be accepted during a strike or lockout, or at a
time when a strike or lockout appears imminent. [Em-
phasis added.]
These defections quickly came to the attention of Pat-
rick Vallila, the Guild's unit chairman for The News
unit, and Cornelius O'Keefe, the grievance chairman for
that unit.8 Vallila testified that, coincident with the post-
ing of The News' March 14 letter relating to the filing of
its unit-clarification petition with the Board, several em-
ployees became disturbed about the status of their jobs
while others complained about the resignations of their
fellow employees from the Guild. Commencing on
March 14, Vallila and O'Keefe proceeded to the various
floors of The News' building and counseled approximate-
ly 50 employees each day about their concerns. On the
afternoon of March 16, Vallila, in the company of
O'Keefe, ventured to the advertising department where
they approached the desk of Ellen Strong, a stenogra-
pher, and engaged in a dialogue with her. The elements
of this conversation, depending on whose version is to be
believed, form the grist of the General Counsel's conten-
tion that, on March 16, Respondent ran afoul of Section
8(b)(1)(A) of the Act by threatening employees with the
loss of contractual benefits if they resigned from the
Guild, and by further threatening them with the imposi-
tion of fines if they resigned from membership in Re-
spondent and if they failed to observe a picket line estab-
lished by their union in the event of a strike, or failed to
support a work stoppage authorized by Respondent at
The News.
Ellen Strong had been employed by The News since
April 1972 as a stenographer. As a member of the bar-
gaining unit, she joined the Guild as required under the
contractual union-security provision after 30 days of em-
ployment. Strong toiled at a desk in the general advertis-
' At the hearing, the parties stipulated that Vallila, in addition to par-
ticipating in the processing of grievances on behalf of the Guild, also is a
member of the Guild's negotiating committee who assists in collective-
bargaining negotiations with The News; is a member of the Executive
Committee of his union; is a trustee of the welfare fund which is jointly
administered by The News and the Guild; and, is a delegate to the Inter-
national's convention. The parties further stipulated that, as the grievance
chairman of The News unit, O'Keefe is chiefly responsible on behalf of
the Guild for handling grievances at all stages and recommends whether
the grievances warrant processing through arbitration. O'Keefe also sits
as a member of the Guild's contract negotiating team in its dealings with
The News, and, like Vallila, is a member of the Executive Committee. In
view of these stipulations, I find and conclude that Vallila and O'Keefe
were agents of the Guild within the contemplation of Section 8(b)(l)(A)
of the Act at all times material herein. See Auto Workers Local 600 (Ford
Motor), 225 NLRB 1299, 1304, 1309 (1976).
1255
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing department which was separated by a tall glass parti-
tion from that of a friend and fellow secretary in that de-
partment named Patricia Bane. Strong testified that,
prior to the visit of Vallila and O'Keefe on March 16,
she and some fellow employees had heard rumors that
they could resign from the Guild, and she had learned
from Patricia Bane that the latter had mailed a letter of
resignation to the Guild on March 15. According to
Strong, she was surprised to find out that resignation
from the Guild was an option available to members of
The News' unit because she had never received nor read
the Guild's constitution which authorized such action,
nor had she ever been informed by any Guild official
that this option could be exercised. After discussing this
topic with Bane and employee Dorothy Fagello, Strong
proceeded to the office of the labor relations department
in an attempt to verify the accuracy of the rumors. On
her arrival, Strong encountered The News labor rela-
tions' counsel, informed him of the rumors which she
had heard, inquired into their accuracy, and asked how
she could go about tendering her resignation to the
Guild. Counsel assured Strong that members of that
labor organization were lawfully permitted to withdraw
from membership in the Guild and, at her solicitation, he
suggested the appropriate language to be utilized in sub-
mitting her letter of resignation.
Strong further testified that, following her conversa-
tion with counsel, she returned to work. Sometime there-
after, Guild Unit Chairman Vallila came to her desk and,
while addressing Strong but glancing at BAne who was
seated opposite the glass partition near Strong's work
station, Vallila asked Strong whether she "had heard any
rumors about anyone wanting to resign or drop out of
the Guild .... " Although Strong was aware that Bane
had submitted her letter of resignation on the preceding
day, Strong responded in the negative. Vallila thereupon
announced that "the Guild wasn't accepting any resigna-
tions" and that it "would fine people for either attempt-
ing to resign or for resigning . . . and take them to
court." Vallila added that members who resigned or at-
tempted to do so "would lose our benefits which would
cost about thirty dollars a week, if we had to pay for
them ourselves .... " At the conclusion of their con-
versation, Vallila told Strong to advise him if she became
aware of any Guild member who desired to resign from
the Union, and Strong agreed to do so.
When Vallila left her work area, Strong became per-
turbed by the divergent advice wich she had received
from The News' counsel and her union representative
concerning her right to resign from the Guild. She re-
turned to the labor relations department and again ques-
tioned counsel about the matter, and was once more as-
sured that the Guild's constitution sanctioned resigna-
tions provided that she continued to pay the equivalent
of periodic dues and fees uniformly required of members.
Still not satisfied, Strong telephoned the Regional Office
of the Board for advice. About 4 p.m. on March 16,
Strong typed and mailed her letter of resignation to the
Guild.
Patricia Bane was hired by The News as a secretary in
November 1969 and joined the Guild. Bane testified that,
on March 15, she learned for the first time from employ-
ee Dorothy Fagello that Guild members could resign
from that labor organization if they continued to pay the
equivalency of their union dues. Bane journeyed to The
News' labor relations office to seek confirmation of this
rumor and was informed that she could tender her resig-
nation without recrimination. After leaving the office,
Bane typed and mailed her letter of resignation to the
Guild on March 15 which was received by that labor
entity on March 16. According to Bane, she had never
received or read a copy of the Guild's constitution
before the submission of her resignation and, prior to
March 15, had never been aware that she was free to
leave the ranks of the Guild's membership. Finally, Bane
related on the stand that, on the afternoon of March 16,
Vallila and O'Keefe entered her advertising department
and approached Ellen Strong's desk. Vallila proceeded
to converse with Strong while he directed his gaze at
Bane, although Bane could not overhear their discussion.
When called to the stand, Unit Chairman Patrick Val-
lila recounted that he visited the advertising department
on the afternoon of March 16 in the company of
O'Keefe. He testified that, on their arrival, Ellen Strong
posed some questions to him relating to what "would
happen to a Guild employee if they crossed a picket line
.... " Vallila answered that there was a procedure set
forth in the Guild's constitution which dealt with this
happenstance and that Strong could ultimately be fined if
she did so, although Vallila did not explicate in his testi-
mony the circumstances under which the fine would be
imposed. Strong then inquired about the potential effect
of The News' unit-clarification petition pending before
the Board. Finally, she asked about the status of her pen-
sion and health and welfare benefits. According to Val-
lila, he replied that, if the Board removed her from The
News' unit, her pension would be frozen and her health
and welfare benefits would be placed into another plan.
However, Vallila flatly denied that he had threatened
Strong with the loss of these benefits in the event that
she resigned from the Guild, or that the subject of resig-
nations had ever arisen during the course of their con-
versation, although he acknowledged that he was aware
at this time that Patricia Bane had submitted her resigna-
tion prior to his visit that day.
Grievance Chairman Cornelius O'Keefe testified that,
prior to his visit to the advertising department with Val-
lila on March 16, these Guild officials had learned that
several members in The News' unit had submitted their
resignations to the Union and that Strong and Bane were
the prime movants in soliciting these defections. At the
outset of his testimony, O'Keefe reported that he and
Vallila spoke to many employees on that date regarding
resignations, the possible impact of the unit clarification
petition, the continuance of pensions and other benefits,
and the probability of a strike. O'Keefe remembered that
one employee asked Vallila what would happen if a
strike were called and Vallila, after drawing attention to
the Guild's constitution, responded that the Guild would
not accept resignations when it appeared that a work
stoppage was imminent. At this juncture, some secretar-
ies inquired into the potential penalties which they might
incur in the event that they crossed a picket line. Initial-
1256
NEWSPAPER GUILD LOCAL 3 (NEW YORK NEWS)
ly, O'Keefe claimed that neither he nor Vallila men-
tioned anything about fines to the questioners, although,
in his testimony, Vallila acknowledged that the subject
had arisen. O'Keefe then changed tack and conceded
that "one particular reference was made to the successful
fining . . . by the Guild in the past of Guild members
crossing a [New York] Times picket line," but O'Keefe
insisted that the topic of fines did not arise in the context
of resignations or attempts to do so. I deem it implausible
that O'Keefe or Vallila would have made reference to
the fining of Guild members who crossed a picket line at
The Times in a total vacuum, and I am convinced and I
find that their reference to the incident of fines at The
Times was in response to inquiries by employees as to
what would befall them in the event that they resigned
from the Guild.
Ellen Strong impressed me as a forthright and honest
witness and I credit her testimony insofar as it collides
with that of Vallila and O'Keefe. I find that, in early
March, Vallila learned that several members of The
News' unit had submitted letters of resignation, an action
which was of great consternation to the Guild at this
time,7 and both he and O'Keefe believed that Strong and
Bane were the chief instigators of these defections. I find
that, on March 16, Strong learned for the first time in
her 6 years of membership in the Guild that she could
resign from the union, and she verified the accuracy of
this information with The News' labor counsel.8 On dis-
covering that she could withdraw with impunity, I find
that Strong returned to work and was approached by
Vallila and O'Keefe who inquired whether she had heard
if any of her fellow employees had contemplated drop-
ping their Guild membership. On answering in the nega-
tive, I find that Vallila, who was aware that Bane had
submitted her resignation on the previous day, warned
that the Guild would not accept resignations and threat-
ened that any defectors would be fined and taken to
court for the collection of those fines. I further find that,
at the conclusion of their discussions, Vallila remarked
that any member who resigned would be deprived of
their contractual benefits and forced to shoulder the cost
of these emoluments alone.
It is now established that a labor organization which is
the exclusive bargaining representative for a given unit
of employees is statutorily charged with the responsibil-
ity of fairly and impartially representing the interests of
all employees in that unit without regard to their union
membership." This is so because, whether an employee is
a member of that union or simply pays his or her equiva-
lency of periodic dues as a nonmember, both are entitled
to the receipt of the same contractual benefits which
have been negotiated for them by their designated bar-
gaining agent, and the agent is legally obligated to ad-
7 Harry Fisdell, the executive vice president of the Guild, testified
that, during this period, the Guild was troubled by the receipt of a large
number of resignations from members at the New York Times and the
New York Post.
a There is neither allegation, contention, nor argument that The News
in any fashion unlawfully solicited or assisted in effectuating the resigna-
tions of unit employees.
a See Wallace Corp., 323 U.S. 248, 252 (1944).
minister the contract to ensure this result.' ° Inasmuch as
an employee is vested under Section 7 of the statute with
the right either to join or to refrain from joining a labor
organization, a threat to deprive the individual with loss
of employment terms or conditions such as contract ben-
efits as a means of inducing his or her enlistment in its
ranks or the retention of membership constitutes restraint
and coercion in violation of Section 8(b)(1)XA) of the
Act." Accordingly, as I have found that Vallila threat-
ened Strong on March 16 that she and other employees
would lose their contract benefits if they resigned from
the Guild, I conclude that, by this conduct, Respondent
thereby violated the aforesaid section of the Act. I fur-
ther conclude that Respondent violated that section
when, on March 16, it threatened to impose a court-en-
forceable fine upon Strong if she resigned or attempted
to resign from the Guild.12
On March 17, the Guild mailed a letter to its members
announcing that a meeting was scheduled for March 22
at which they would be called on to authorize the union
to call a strike at The News. At the March 22 session,
the members in attendance voted to approve a work
stoppage by a vote of 917 to 36.
Livia Allen, a confidential secretary who was not in
The News' bargaining unit and hence not a member of
the Guild because of her exempt position, testified that
she and several other secretaries who were unit person-
nel were having lunch together in their department on
March 23 when George Diamond, the Guild's assistant
treasurer for The News' unit and its shop chairman in
the circulation department, walked by.13 Allen reported
from the stand that an unidentified secretary beckoned to
Diamond and inquired whether members who resigned
from the Guild would receive the same benefits as those
who maintained their membership. Diamond replied in
the affirmative, stating that "they do get the same bene-
fits as if they had not resigned .... " Allen testified that
she then overheard Diamond tell the secretaries in con-
nection with the processing of grievances for resignees
that "if they had a problem that the Guild would not
back them .... He took one of the girls for example
. . . he said . . . you Joanne, if you had a problem, if
your boss Murray was giving you too much work, and
you came to me with your problem, I'd say, yeah, yeah,
Joanne, and I wouldn't do anytlhing about it."
During his examination, Diamond recalled the incident
which occurred on March 23 relating to his conversation
with secretaries in the presence of Livia Allen. Diamond
testified that, as he journeyed through the department, a
unit secretary named Carol Rothman hailed him and
asked about the state of negotiations between the parties
o1 Brewery Workers (Miller Brewing Ca), 195 NLRB 772 (1972).
I t Ibid.
12 See Scofield v. NLRB, 394 U.S. 423, 429-430.
I' The parties stipulated at the hearing that Diamond occupied these
posts at the times material herein. They further stipulated that, in his ca-
pacity as shop steward, Diamond processed grievances on behalf of
Guild members at the first stage under the guidance of Unit Chairman
Patrick Vallila. In view of the foregoing, I find and conclude that Dia-
mond was an agent of the Guild at the salient times within the purview
of Sec. 8(b)(1XXA) of the Act. See Teamsters Local 866 (Lee Way Motor
Freight), 229 NLRB 832, 833 (1977).
1257
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the number of Guild members who had resigned
from the union. Diamond answered that there were be-
tween 6 and 8 resignees. Rothman then inquired into the
consequences which would befall these resignees, and
Diamond replied that he did not think that any action
could be taken against such individuals. However, Dia-
mond confessed that he was unsure of his reply because
he was unfamiliar with the Guild's constitution and
bylaws and was unaware of whether the Guild had the
power to reject the resignations. Initially, Diamond
denied in his testimony that he had informed Allen or
any other employee during this conversation that the
union would not press grievances on their behalf in the
event that they relinquished their Guild membership.
When pressed on this score during cross-examination,
Diamond then explained that he had told the ladies that
"if a person was a member of the Guild, and the Guild
thought the person was correct . . . with a greivance,
that the Guild would fight it all the way to arbitration. I
said, now, if somebody wasn't in the Guild . . . and I
was trying to explain how it works to the best of my
knowledge, like there are different steps where the Guild
would say, well, you know, this person is right and his
manager would say this person is wrong, and then I
brought out that . . . somewhere along the line, going
from one of these steps with management saying that
they're wrong, the Guild is liable to say . . . well, you
know I guess The News is right, forget about it .... "
Despite the fact that Diamond had served for almost 4
years as a shop steward and had routinely processed
grievances at the first step, and that grievances automati-
cally proceeded to the second step at the employee's
behest, Diamond sought to explain his asserted disparate
treatment of Guild and non-Guild members by stating
that "I was later informed I was completely wrong
about" the matter.
I credit the testimony of Livia Allen and find that,
during his visit to the department on March 23, Dia-
mond informed the secretaries that the Guild would
refuse to handle their grievances against The News in
the event that they tendered their resignations and relin-
quished their Guild membership. By so doing, I conclude
that Respondent violated Section 8(b)(1)(A) of the con-
trolling legislation. 4
Continuing the narrative, the existing collective-bar-
gaining agreement between the parties expired on March
30. Meanwhile, following the strike vote of March 22,
several unit members submitted their resignations to the
Guild, including Ray McInerney and Hector Ilarraza.
McInerney, who was employed as an assistant supervi-
sor in the display, advertising, and accounts receivable
department, entered The News' employ in 1957 and
joined the Guild in that year. On April 7 he dispatched a
letter to the Guild in which he advised that he had re-
signed on that day but signified his intention to pay the
equivalency of dues and fees uniformly required of mem-
bers. On April 12 Unit Chairman Vallila acknowledge in
writing the receipt of McInerney's letter. In doing so,
Vallila wrote:
14 See Teamsters Local 66 (Owens-Corning Fiberglas), 228 NLRB 398,
405 (1977).
Please be advised that the constitution of the News-
paper Guild outlines certain procedures to be fol-
lowed for withdrawal or resignment of membership.
We enclose a copy of the constitution for your in-
formation, and you will find the pertinent portion to
be under Article X, Section 15.
In any event, this is to inform you that Article X,
Section 13 (c) of the Guild's constitution reads as
follows:
No resignation or withdrawal may be accepted
during a strike or at a time when a strike appears
imminent.
As you know, the News Unit authorized a strike
against the News March 22, 1978. Therefore, at this
time, we are unable to accept your resignation. 15
Mclnerney testified that he had been a Guild shop
steward in 1973 and had seen a copy of the constitution
and bylaws at that time but could not recall their con-
tents. He acknowledged that he had attended the union
meeting on March 22 at which the strike vote was taken
and learned of the results of the balloting before he sub-
mitted his resignation.
On May 10, the Guild issued a notice that a special
meeting of the Executive Committee was scheduled for
May 15 during which the Committee expected to consid-
er and vote upon the letters of resignation which had
been received. At the May 15 conclave, the Committee
discussed the origin and intent of the language which
had been inserted in article X, section 13(c) of the
Guild's constitution at the International's convention in
1973 and 1974. A vote on the resignations was taken as a
result of which the Committee decided to accept the 15
withdrawals which had been submitted prior to the
March 22 strike vote, but to reject those tendered there-
after on the ground that "a strike or lockout appeared
imminent" within the contemplation of the above-noted
section of the constitution. The results and the reasons
for this action were published in the Guild's "Citywide
Bulletin" and were distributed to the members on May
16. On May 18, the Guild advised Mclnerney in writing
that the Executive Committee had not approved his res-
ignation based on the strictures of Section 13(c) of that
article, and informed the employee of his appellate rights
under that instrument. On May 23, the Committee again
met and adopted a resolution that all resignations submit-
ted after the March 22 strike vote would be rejected be-
cause "a strike is imminent as per Article X, Section 15"
of the constitution. On May 25 and 31 the Guild mailed
copies of the various resignations to its Internaitonal ad-
vising it of the action which it had taken in accepting
some and rejecting others with an explanation regarding
the reasons therefor. By wire, dated June 6, the Interna-
tional approved the Guild's resolution of the issue.
On June 5, the day before the Guild's International
sanctioned the Guild's eclectic treatment of the resigna-
I' Because of a change of address, this April 12 letter from Vallila was
returned by the post office. Another was mailed to McInerney on April
24 which he received.
1258
NEWSPAPER GUILD LOCAL 3 (NEW YORK NEWS)
tions, Hector Ilarraza mailed a letter of resignation to his
union which apparently was not received by it. Ilarraza,
who had been employeed by The News for 5 years as a
key punch operator, joined the Guild in 1974. He testi-
fied that he first learned that he could resign from his
labor organization when he read a copy of the News'
"INFO" bulletin which was posted on March 19 and
which advised that Guild members were entitled to with-
draw from the entity without the forfeiture of any of the
existing contractual benefits. According to Ilarraza, he
had never received a copy of the Guild's constitution
prior to his resignation, and had never read in the
union's newsletters that the constitution had been amend-
ed in 1974 to prohibit resignations when strike or lockout
was "imminent."
Events abided until June 13 when the Guild com-
menced its strike against The News which was terminat-
ed on June 17. During the work stoppage, McInerney
and Ilarraza crossed the picket line and performed their
normal work duties.
In late August, Ilarraza received two strike-benefit
checks from the Guild which were misguided due to its
failure to receive his June 5 letter of resignation. Ilarraza
returned the payments on August 31 apprising the union
of his earlier withdrawal from membership. By letter of
September 15, Ilarraza was notified by the Guild that his
resignation had been rejected in conformity with the pro-
visions of article X of the constitution, and was advised
of his right to appeal this decision.
On December 14 McInerney and Ilarraza were in-
formed in writing by the Guild that intraunion discipli-
nary proceedings had been instituted against them pursu-
ant to the International constitution for having crossed
the picket line maintained at The News during the June
13 to June 17 strike, and that these charges could lead to
the imposition of penalities, including court-enforceable
fines.' 6 Thereafter, on April 18, 1979, these men re-
ceived another letter from the Guild. This time, they
were apprised that, following a hearing before the
Guild's trial board in March 1979 at which they had de-
clined to appear, the baord found both guilty of having
violated the constitutional provision banning members
from crossing Respondent's picket line at The News, in
consequence of which a fine equivalent to all moneys
earned by the offenders for the period of the strike had
been assessed. These actions by the Guild found their
way into the General Counsel's complaint which
charged that, on December 14 and April 18, 1979, Re-
spondent further violated Section 8(b)(l)(A) of the Act.
In NLRB v. Granite State Joint Board (Intl. Paper Box
Machine Co.),' 7 the United States Supreme Court ad-
dressed itself to the matter of the balancing of employ-
ees' right under Section 7 of the Act and those of unions
under Section 8(b)(1)(A). In that case, the membership of
a union voted to strike their employer in the event that a
16 Sec. 12 of the International's constitution enumerates a list of the
offenses for which members could be held accountable, including the
"Willful violation of this Constitution," and "Working for or in a Shop
which is on strike," and "Disobeying or failing to comply with any
lawful decision or order . . . of anybod)y with jurisdiction oser the
member . .. "
i" 409 U.S. 213 (1972).
labor compact was not reached prior to the expiration of
their existing agreement. When a new contract failed to
eventuate, the work stoppage commenced. Shortly there-
after, a union meeting was conducted at which the mem-
bership resolved that any member who aided or abetted
the employer during the strike would be fined. Some
months later, several members mailed letters of resigna-
tion to the union and returned to work.
On receipt of the resignations, the labor organization
notified the resignees that they would be brought before
a trial board to face intraunion charges for having re-
ported to work. The former members failed to appear at
the trials and the fines were imposed. Suits were filed by
the union to collect the fines. Following the trials and
the imposition of the financial penalties, the union was
charged with having violated Section 8(b)(l)(A) of the
statute by this conduct. In its decision, the Supreme
Court affirmed finds of the violations alleged. In doing
so, the Court stated:
We held in National Labor Relations Board v. Allis-
Chalmers Mfg. Co., 388 U.S. 175, that a union did
not violate Section 8(b)(l) by fining members who
went to work during a lawful strike authorized by
the membership and by suing to collect the fines.
The Court reviewed at length in that opinion the
legislative history of Section 7 and of Section
8(b)(1), and concluded . . . that the disciplinary
measures taken by the union against its members on
these facts were within the ambit of the union's
control over its internaitonal affairs. But the sanc-
tions allowed were against those who "enjoyed full
membership." Id. at 196. (Emphasis supplied.)'8
The Court went on to observe that:
. . . when a member lawfully resigns from the
union, its power over him ends. We noted in Sco-
field v. Labor Board, 394 U.S. 423, 429, that if a
union rule "invades or frustrates an overriding
policy of the labor laws the rule (of Allis-Chalmers)
may not be enforced even by fine or expulsion,
without violating Section 8(b)(I). " 19
After noting that:
We have here no problem of construing a union's
constitution or bylaws defining or limiting the cir-
cumstances under which a member may resign from
the union ... 20
the Court concluded:
We do not now decide to what extent the contrac-
tual relationship between union and member may
curtail the freedom to resign. But where, as here,
there are no restraints on the resignation of mem-
bers, we conclude that the vitality of Section 7 re-
quires that the member be free to refrain in Novem-
ber from the actions he endorsed in May and that
18 Id. at 214
'1 Ibid.
2n Id. at 216.
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his Section 7 rights are not lost by a union's plea for
solidarity or by its pressures for conformity and
submission to its regime.2 '
Armed with knowledge of the Supreme Court's opin-
ion in Granite State, the Guild's international body met in
convention in 1973 and 1974 and considered ways to
amend its constitution in such a manner as lawfully to
take advantage of the issue left unanswered by the Cour.
These deliberations resulted in the insertions in article X,
section 13(c) and 15, of the language that "No resigna-
tion or withdrawal may be accepted during a strike or
lockout, or at a time when a strike or lockout appears
imminent." As chronicled above, this provision was uti-
lized in the actions which that labor organization took
against McInerney and Ilarraza.
The Guild was not the only labor organization to
become aware of Granite State and to alter its constitu-
tion to limit the circumstances under which a member
could resign from membership. In Machinists Local 1327
(Dalmo Victor),22 the record disclosed that the union
therein considered the matter in early 1974 and adopted
a constitutional provision which recited:
Improper Conduct of a Member . . . Accepting em-
ployment in any capacity in an establishment where
a strike or lockout exists as recognized under this
Constitution, withou 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 wihtin 14 days preceding its estab-
lishment.
Shortly after the adoption of the provision, the union
called a meeting of its members and informed them of its
formulation. Thereafter, the labor organization covened
another session at which a strike vote was taken against
the employer. At this meeting, the members were again
apprised of the existence of the above-quoted clause and
were warned that anyone who crossed the picket line
and returned to work would be fined.
After the work stoppage commenced, some members
who were fully aware of the constitutional ban submitted
their resignations from membership, crossed the picket
line, and returned to work. This defiance prompted the
union to impose fines upon the resignees which were col-
lectible in court. Thereupon, charges were filed with the
Board by these individuals alleging that, by fining the
former members for working behind the picket line, the
union violated Section 8(b)(1)(A) of the Act. Relying on
an earlier dicision involving a construction of the same
constitutional provision reported above, 2 3 a Board ma-
21 Id. at 217.
22 231 NLRB 719 (1977).
23 Machinists Local 1994 (O.K. Tool Co.), 214 NLRB 651 (1974).
jority concluded that the union had violated that section
by the imposition of the fines. In reaching this result, the
majority observed that the issue left open by the Su-
preme Court in Granite State was not presented for deci-
sion because the constitutional clause involved did not
purport to place any restrictions upon an employee's
right to resign from a union, but rather was designed as a
"proscription of postresignation" conduct by strikers.
Thus, the Board majority pointed out that:
If indeed the constitutional provision here involved
. . . was truly a restriction on the right to resign,
then . . . we would be faced with an issue the Su-
preme Court expressly left open in its Scofield and
Granite State decisions, and thus with determining if
such a restriction as enforced here with fines is
lawful. But that issue is not before us, and we ex-
press no opinion on it. For the Union's constitution-
al provision is clear and unabiguous in its language,
and that language places no clear restriction, no
subtle restriction, no restriction by implication, and,
in sum, no restriction whatsoever upon an employ-
ee's right to resign. Affirmatively, the provision
seeks to do what its plain language says it seeks to
do, that is, control, not resignations by member, but
postresignation conduct, i.e., the conduct of em-
ployees who are no longer members.2 4
Following the Board's split decision in Dalmo Victor,
its enforcement was sought before the Court of Appeals
for the Ninth Circuit. In another split opinion, 2 5 the cir-
cuit court majority considered that the Board's construc-
tion of the constitutional provision as controlling postre-
signation conduct rather than resignations by members
was "hypertechnical." Appraising the language of the
clause, the Court concluded that it indeed defined or lim-
ited the circumstances under which a member could
resign, and therefore was a restriction on the member's
right to do so. Turning to a consideration of whether the
provision, as thus construed, was valid, the Court noted
that this question was never reached by the Supreme
Court and had been expressly reserved by the Board in
Dalmo Victor. Recognizing the Board's expertise in the
field of labor relations, the Court remanded the case to
the Board to consider and decide the question. Thereaf-
ter, the Board accepted the remand and, on January 16,
1980, heard oral argument on the issues involved. To
date, no decision has been rendered by the Board in that
case.
Inasmuch as the novel legal issues raised herein con-
cerning the validity of article X, sections 13(c) and 15 of
the Guild's constitution and its application to Mclnerney
and Ilarraza are currently before the Board for consider-
ation and their resolutions hinge on the Board's decision
in Dalmo Victor, I can perceive of no useful purpose to
be served by adjudicating those issues herein and thus
prejudging that tribunal. As none of the parties to this
proceeding could conceivably be prejudiced thereby, I
shall refer these issues to the expertise of the Board.
24 Id. at 720-721.
26 608 F.2d 1219 (1979).
1260
NEWSPAPER GUILD LOCAL 3 (NEW YORK NEWS)
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the Employer's op-
erations described in section I, above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has violated Section
8(b)(1)(A) of the Act, I shall therefore order that it cease
and desist therefrom and take certain affirmative action
which I deem is necessary to effectuate the policies of
the Act.
On these findings of fact and conclusions of law and
on the entire record, I make the following
CONCLUSIONS OF LAW
I. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. The News is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. By threatening members that they would lose their
collectively bargained contractual benefits or forfeit
uinion representation in grievance proceedings if they re-
signed form the Guild, Respondent is engaging in and
has engaged in unfair labor practices within the meaning
of Section 8(b)(IXA) and Section 2(6) and (7) of the Act.
4. By threatening members that court-enforceable fines
would be imposed upon them if they resigned or at-
tempted to resign from the Guild, Respondent is engag-
ing in and had engaged in unfair labor practices within
the meaning of Section 8(b)(1XA) and Section 2(6) and
(7) of the Act.
[Recommended Order omitted from publication.]
1261