Oil Workers, Local 6-578

National Labor Relations Board - Board Decisions

Sep 29, 1978

238 N.L.R.B. 1227 (N.L.R.B. 1978)

OIL WORKERS, LOCAl 6 578
Oil, Chemical and Atomic Workers International
Union, Local 6-578, AFL-CIO and Gordy's, Inc.
Case 18 CB-853 2
September 29, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PE NEI.I1
AND TRI ESDAI. I
On July 25, 1978, Administrative Law Judge Ber-
nard Ries issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Oil, Chemical and Atomic
Workers International Union, Local 6-578. AFL-
CIO, Austin, Minnesota, its officers, agents, and rep-
resentatives, shall take the action set forth in said rec-
ommended Order.
DECISION
BERNARD RIES. Administrative Law Judge: This case was
heard in Austin, Minnesota, on April 12 and 13, 1978. At
issue is the propriety, under Section 8(b)( I )(A) of the Act,
of conduct by Respondent against six employees who ten-
dered resignations and crossed a picket line sanctioned by
Respondent. A brief was received from General Counsel on
May 12, 1978; Respondent has not filed a brief.
On the basis of the record,' the brief. and my observation
of the witnesses, I make the following findings of fact and
Conclusions of Law.
I. JURISDICTION
Gordy's, Inc.. the Charging Party, is a Minnesota corpo-
ration engaged in the operation of retail grocery store in
Minnesota and Iowa, including a store located in Austin.
Fk rrors in the Iranscript have been noted and corrected
Minnesota. During the representative 12-month period end-
ing October 31. 1977, Gordy's had total retail sales in excess
of $1 million, including more than $500,000 in sales at its
Austin store, and purchased goods in excess of $500,000, of
which more than $50,000 was purchased from suppliers
outside of Minnesota and received by Gordy's in that State.
The answer to the complaint admits, and I find, that
GCordy's is an employer engaged in commerce within the
meaning of the Act.
I. IHFI StArutS OF IiHI L.ABOR OR(GANIZAIION
Respondent is, as the answer states, a labor organization
within the meaning of the Act.
III. rte Rii lANIl FA( rs
On October 4, 1977, Amalgamated Meat Cutters Local
P 9 struck Gordy's in a contract dispute at several stores,
including the one at Austin, Minnesota, involved in the pre-
sent case. The employees of Gordy's represented by Re-
spondent, also engaged in negotiations with Gordy's at the
time, honored the Meat ('utters' picket line. During the
course of the strike, after submitting resignations from
union membership to Respondent, six employees returned
to work. The complaint charges that, in reacting to that
conduct by the employees. Respondent violated Section
8(hb)(l)(A). The allegedly coerced employees named in the
complaint are Kirk Handahl. George Kuth. Kathv Weber.
Jeffre, Nauman. Rodney Walker. and Randall Hillson.
Counsel for the General Counsel stated at the hearing
that the tbllowing incident is not alleged to constitute a
separate violation of the Act, but rather is "background
material and going to the issue of the present [sic]." Em-
ployees and union members David Nordby and Jeffrey
Nauman, who honored the picket line on the first day of the
strike. testified that early in the morning of October 4 they
spoke to Respondent's business manager. Betty Thomas,
outside the store, with Nordby saying something about
"withdrawing from the Union because I needed the
money." Thomas told the employees to see her later in her
office.
A few hours thereafter, Nordby, Nauman, and employee-
union member Loren Day went to see Thomas, with pre-
pared letters of resignation. When they offered the letters
and "asked if we could resign," Thomas said she "wasn't
accepting any withdrawals at the time." Thomas went on to
say that "in years before for crossing a picket line there had
been fines up to a hundred dollars and nowadays it could
be up to five hundred dollars." Loren Day gave Thomas his
resignation and left. Thomas then told Nordby and Nau-
man "to think it over for awhile and let things clear in our
mind and then give her an answer later if we were going to
withdraw or not." They left the office. Nordby never sub-
mitted his written resignation and does not appear in the
complaint; Nauman, who is named in the complaint, did.
Although Day, as noted, resigned, he is not alleged to have
been coerced.
I credit the above synthesized testimony of Nauman and
Nordby on this point. In her testimony, Thomas initially
described the employees' question to her as "what could be
238 NLRB No. 172
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the possible consequence if they were to resign from the
Union," but then corrected that question to "what would
happen if they crossed the picket line . . . and went to
work." Her claimed answer was that charges could possibly
be filed against them and that fines and expulsion might
result. The thrust of Thomas' testimony seemed to be that
no reference to resignation occurred, but I do not believe
that Nordby and Nauman, both impressive witnesses, fabri-
cated this context.
Thus, it appears that after the employees indicated an
intention to resign, Thomas first told them that she would
not accept their resignations and further stated that if they
did attempt to resign and cross the picket line, they could
be fined as much as $500. While it could be argued that
since Thomas initially told the employees that she "wasn't
accepting withdrawals at the time," her subsequent refer-
ences to fines necessarily posited a hypothetical appraisal of
what might result if nonresigned members crossed the
picket line. But in view of her subsequent suggestion to the
employees to "think it over" and then "give her an answer
later if we were going to withdraw or not," the conversation
as a whole clearly constituted a declaration by Thomas of
the consequences which would ensue if indeed they decided
to "withdraw" and then crossed the line.'
There was testimony that Nordby repeated portions of
this conversation to other employees, but it is not shown
that he told them that fines could be visited upon former
members who had resigned, as well as, or as opposed to,
members who had not. Thus, Nordby said that at some
unknown date, while he and employee George Kuth
(named in the complaint) were picketing at another estab-
lishment, he "told him that Betty had told us that in years
before fines were like a hundred dollars and nowadays it
could be up to five hundred dollars." Nordby made equally
equivocal statements to Kirk Handahl and Randall Hillson,
also named in the complaint.'
Hillson testified that about a week after the strike began,
he heard Thomas talk to "some employees" on the picket
line "about the possibility of what they could do to Loren
Day"--"that she would try and fine Loren Day." There is
no evidence that either Hillson or the employees who were
told this had also become aware that Loren Day had re-
signed.4
Employee Rodney Walker testified, without contradic-
tion, that at a union meeting which must have occurred on
2 Respondent's constitution makes provision for the issuance of a "with-
drawal card," when "a member leaves the jurisdiction of the International
Union." It is inconceivable that either Thomas or the grocery clerks, who
made clear to her their desire to return to work, understood one another to
be speaking of this kind of withdrawal.
I Similarly, Kuth and Handahl only testified that Nordby spoke generally
of the fines which could be imposed for crossing the line and did not indicate
that Nordby, reporting Thomas' statement, had said that the sanctions could
be imposed against members who had resigned. Hillson did not testify on
this subject.
4 Although Day, who was not called, did not testify that he had in fact
resigned, Thomas said that at the end of the meeting on October 4, Day
"threw his resignation on my desk." The record does not show that any
charges were thereafter filed against Day by the Respondent for crossing the
picket line, although, as we shall see, other resigners were so charged. The
probability, as discussed infra, is that Day had already breached the picket
line before he resigned. Day is not named in the complaint as having been
coerced and restrained.
October 11,5 with "a lot of employees" present, Thomas
"stated that Loren Day and Kathy Weber crossed the
picket line and charges were being filed and they could be
fined." The evidence does not indicate that the employees
present at the meeting knew, or were told. that Weber and
Day had submitted resignations before crossing the line.
The record shows that six employees (apart from Day)
resigned from the Respondent during the strike. On Octo-
ber 10, Kathy Weber sent a certified letter to the Respon-
dent, declaring that she was resigning on that date. On Oc-
tober I, Weber returned to work. On the same day,
Thomas sent Weber the following communication:
Dear Kathy:
You are herewith charged with violation of the In-
ternational Constitution by crossing a legal picket line
at Gordy's Super Value on October 11, 1977. Pursuant
to Article 12 Section 2 of the Constitution, a copy of
these charges are [sic] being filed with the president of
Local 6 578.
You will be advised when these charges will be pre-
sented to the membership of Local 6-578 so that you
may have an opportunity to appear.
Weber testified, however, that on October 12, before she
received this letter, she called upon Thomas, "told her that
I wasn't going to do it again and so she let me back into the
union and said everything would be dropped ... and to just
disregard the letter that I was receiving." When Weber sub-
sequently received the letter, she "didn't read it" but simply
"threw it away."6
Early in the morning of October 17, a letter containing
the immediate resignations of Nauman, Walker, and Hill-
son was dispatched at the post office in Austin, and the
three employees crossed the picket line later that same day.
Although Respondent made no issue at the hearing as to its
timely receipt of resignation letters from Handahl, Kuth,
and Weber, it did assert, through Thomas, that the resigna-
tions of Nauman, Walker, and Hillson were not received.
The credible testimony of these three employees was that
on Sunday evening, October 16, they together wrote out
letters of resignation. dated October 17. At 8 a.m. on Octo-
ber 17, Hillson and Jerry Osmonson, his store manager,
mailed a letter containing the resignations to Betty Thomas,
by certified mail sent special delivery.' The Postal Service
clerk who handled the letter "addressed to Betty Thomas at
I arrive at this date because the remarks hereafter attributed to Thomas
refer to the fact that Kathy Weber crossed the picket line. Weber did so on
October I 11, but she rejoined the Union, and was told by Thomas that her
strikebreaking would be forgiven, on October 12.
6 At the hearing, Weber could not identify the letter, not having read it,
but Respondent stipulated to the authenticity of a copy from its files.
I Respondent repeatedly attempted to interject into the hearing the issue
of the role played by Osmonson and Gordy's attorney in encouraging em-
ployees to resign from Respondent. I attempted to preclude such matenal,
although a fair amount of it came in 'The question whether the Charging
Party improperly attempted to influence the resignations could be no defense
to the complaint in this case, which alleges the commission by Respondent of
unlawful conduct after the resignations Internauional Longhoremen's and
Warehousemen's Union, 79 NLRB 1487, 1492, fn 6 (1948). I do not believe
that Respondent would go so far as to argue that coercion by Gordy's ren-
dered the resignations null and void. If Respondent wished to challenge the
role played by Osmonson, it should have filed charges with the Board; it is
clear from the record that Respondent was aware of Osmonson's activities
prior to expiration of the 10(b) period.
1228
OIL WORKERS. LOCAL 6 578
the local labor center" recalled it because a certified special
delivery letter was an unusual item, and he further recalled
giving the letter to the collection and delivery' foreman.
The latter remembered receiving the letter, addressed to
Thomas, and catching up to and handing it to the special
delivery' messenger, who was just leaving on his rounds. The
special delivery messenger. Mickelsen. recollected receiving
the letter from the foreman just before he left on his route
and testified that he handed the letter at the union hall to a
man to whom he customarily delivers the mail at that ad-
dress. Ordinarily, this individual "pays for all my postage
due and if I have a signature, he signs for it." lie did not.
however. on this occasion have the man sign a receipt, since
this letter had been handled out of the ordinary course of
mail, as described above; the messenger had not himself
signed for it as a certified letter, as he customarily would:
and he did not notice that the letter was certified as he
handed it over.
The record shows that Respondent's offfices are located
in a building occupied by two other unions. Local P 9 of
the Amalgamated Meat Cutters and United Automobile
Workers Local 867. The offices of Local P 9 are at the front
of the building. Raymond Kubicek, financial secretary of
Local P 9, testified that for some 5 years. letter carriers
have presented him with all the mail for the three unions
and that it has been his custom to deliver it: "He throws the
mail in on my desk and as a courtesy to him, I distribute it
to the rest of the offices around there." He also said that
occasionally the janitor, two employees of Local P 9, or
Betty Thomas, seeing the mail on his desk. may themselves
distribute it.
Kubicek testified that he had been on vacation the week
preceding Monday, October 17 and did not come into the
hall until the carrier had made his rounds that morning. He
said that he "never got any such mail that I recall, at all."
While Kubicek gave every appearance of being an honest
man, his uncertainty about when he had been on vacation
leads me to believe that he may not have accurately remem-
bered receiving the item from Mickelsen, the special deliv-
ery messenger. I am inclined to conclude from the testi-
mony of Mickelsen, an impressive winess. although not
willing to commit himself completely ("There was a gentle-
man in the front office there. I don't know the man's name.
I have dealings with him everyday .... I am almost certain
that it was him [that I handed the letter to] . .. ell, I
should back up a hair there. I said in the office, but I
handed it to him in the hallway and then he went into the
office or whatever it is."). that Kubicek was the person to
whom the letter was handed.,
Betty Thomas testified that she never received the letter.
Whether this is true or not (and, in view of my misgivings
about Thomas' unduly restricted version of the October 4
conversation, I am somewhat hesitant about relying on
Thomas' testimony in general. although nothing in her de-
meanor itself caused me to disbelieve her). I think General
Counsel convincingly argues that delivery of the letter to
Kubicek constituted effective delivery to the Respondent.
Thomas testified that she was fully aware of the practice of
I Respondent offered to stipulate at the end of the hearing, and General
Counsel readils agreed, that the individual to whom Mickelsen had been
referring as the regular recipient of the mail was Kubicek
delivering Respondent's mail to Local P-9 and "we never
changed it." Had she objected, the Postal Service would
have made delivery directly to Respondent's offices. Having
received no objection, it would appear that the Service was
justified in assuming that delivery to Local P-9 was proper
delivery to the remainder of the offices.
Thus, it does not seem unfair to Respondent to conclude
that delivery of the resignations to Kubicek constituted ef-
fective delivery to Respondent. Whatever happened to the
letter thereafter, whether "it may have been inadvertently
overlooked or lost or it may have been ignored or destroyed
deliberately," does not affect the legal conclusion which fol-
lows--that the resignations were "thereupon effective."
Communications Workers of America. Local 2108, AFL-
('10 (The Chesapeake and Potomac Telephone Compoav of1
aan'land Inc.)., 186 NLRB 1008, 1018 (1970).
Thomas testified that, as in the case of all the resigning
employees here involved, she received word from various
members that Nauman, Walker, and Hillson were seen re-
turning to work across the picket line on the day they sent
their resignations. On October 18, the day after they re-
turned to work, Thomas sent to the three employees letters
worded in precisely the same manner as that sent to Weber,
set out above.
Finally, George Kuth and Kirk Handahl together sent
resignations to Respondent by certified mail in the early
morning of October 25. They crossed the picket line and
returned to work on October 26. The strike ended 2 days
later. Thomas mailed letters to both employees dated Octo-
ber 31. phrased identically to the letters previously sent to
the other resigned employees. Respondent raised no issue at
the hearing that it did not receive the letters from Kuth and
Handahl in due course.
IV. ANAI.YSIS AND (CON()t SI()NS
There appears to be in this case a threshold issue not
alluded to at the hearing, not referred to in General Coun-
sel's brief, and as to which, because Respondent has failed
to submit a brief, it is unclear whether or not Respondent
relies upon as a defense.
The complaint alleges that certain actions by Respondent
against employees who "had resigned their membership"
violated Section 8(b)(1)(A). A provision of the constitution
of Respondent's parent, contained in the exhibits file, taken
together with testimony by six employees, indicates that,
under the union constitution, the resignations were not ef-
fective. More specifically, article I, section 6, states:
Any member may resign his or her membership pro-
viding all indebtedness is satisfied and no charges are
pending against such member and further provided
that notice of such resignation is submitted in writing
by such member to the President of the Local Union of
which he or she is a member within ten days preceding
any anniversary of the date such member obtained
membership.
The provision thus requires that, to be effective, a resig-
nation must be filed within a narrow escape period of 10
days preceding each member's individual anniversary date
of membership. Had no evidence been presented regarding
the dates upon which the six employees joined the Respon-
1229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent, I could have indulged the presumption, however un-
likely, that the resignations of all six employees were in
conformity with the constitutional time requirements. On
direct examination, however, it was brought out that all six
employees joined the Respondent at times which indicate
that their October 1977 resignations did not fall within the
10-day period preceding their membership anniversaries
(Nauman, hired in "August of '74," joined "[slhortly after I
went to work"; Hillson joined in "August of '73": Walker
joined in "August '76"; Kuth in "January 1977": Handahl
"in early January of 1977"; and Weber in "June of '77").
It might be argued that Respondent's failure to assert in
an affirmative manner at the hearing the constitutional in-
adequacy of the resignations implies that it intends no such
defense. But in view of the given evidence-the constitu-
tional provision, the admitted membership anniversary
dates, the dates of the letters of resignation, the fact that
Respondent continued to treat the resigners as members,9
and the pleadings'°-it appears that the issue of the validity
of the resignations must be regarded as in controversy.
The question of whether a constitutional provision may
limit the right of union members to resign in order to cross
a picket line was expressly reserved by the Supreme Court
in N.L.R.B. v. Granite State Joint Board, Textile Workers
Union of America, Local 1029, AFL CIO, [International
Paper Bo.x Machine Co.], 409 U.S. 213, 218 (1972) ("We do
not now decide to what extent the contractual relationship
between union and member may curtail the freedom to re-
sign"), and again in Booster Lodge No. 405, International
Association of Machinists and Aerospace Workers. AFL
CIO [Boeing Co.] v. N.L. R,B., 412 U.S. 84, 88 (1973). The
Board has spoken on the subject, however. Its recent explo-
ration of the area has resulted in a line of decisions perti-
nent to the question left unanswered by the Supreme Court.
See International Union, United Automobile. Aero.vspace &
Agricultural Implement Workers, U'A W: and its Local No.
647 (General Electric Company). 197 NLRB 608, 609
(1972): Local 1384. United A utomobile. A erospace, and Agri-
cultural Implement Workers, UA W (Ex-Cell-O Corporation),
219 NLRB 729, 730, fn. 4 (1975); and a Supplemental De-
cision and Order in the latter case, 227 NLRB 1045 (1977).
It seems clear from the Board's most detailed articulation
of principles, the Supplemental Decision and Order in Ex-
Cell-O Corporation, that whatever kinds of constitutional
resignation provisions might ultimately be thought to pass
muster, the present one, which bars resignations during
nonstrike periods as well as in strike situations, which af-
fords no flexibility for hardship exceptions, and which
might involve a waiting period for resignation of as much as
I Even after the charge was filed with the Board on October 18 Respon-
dent continued to process internal charges against the employees, as seen by
letters to them of December 7, and as late as February 1978. was notifying
some of them of dues arrearages for months following October.
10 The original complaint, naming only Handahl, Kuth, and Weber,
evoked an answer from Respondent that it "laidmits Kirk Handahl, Jerry
[sic] Kuth and Kathy Weber are members of the Union and admits that on
October 31. 1977, letters were mailed to these individually named members ."
and that Respondent further denied "all other allegations contained in said
paragraph," which necessarily included an allegation that "each of said em-
ployees had resigned their membership from the Respondent prior to cross-
ing the picket line" (emphasis supplied). Respondent's answer to the
amended complaint reaffirmed "all admissions, denials, and allegations"
contained in its original answer
a year (less 10 days), does not provide the sort of "reason-
able accommodation" between the conflicting interests
which the Board conceives of as minimally required. 227
NLRB at 1051.
In addition, the Board's ruling in the Ex-Cell-O Supple-
mental Decision and Order, relying on Booster Lodge No.
405, supra, held that union members are free to resign at
will where "there is no evidence that the employees . . .
either knew of or had consented to any limitation on their
right to resign." Ex-Cell-O I1, 227 NLRB at 1048. The bur-
dens of production and persuasion on this issue were as-
signed by the Board to the party claiming the ineffective-
ness of the resignations, 227 NLRB at 1049, fn. 21. Here,
Respondent has failed to meet those burdens. The record is
silent on the method employed by Respondent to take in
new members (227 NLRB at 1048), the employees testified
that they were never notified of any restriction on their
right to resign, and the evidence shows that copies of Re-
spondent's constitution were not distributed to new mem-
bers. Compare International Association of Machinists and
Aerospace Workers, District No. 71. Local 778 (Whitaker
Cable Corporation), 224 NLRB 580, 581 (1976), holding
flatly that "a constitutional provision is not a substitute for
proper notice."
A question relating to the theory of the complaint arises
next. The initial complaint, referring only to the letters sent
by Respondent to Handahl, Kuth. and Weber. had alleged
that Respondent violated the Act "by charging the individ-
uals named below with violation of the Constitution of Re-
spondent's International Union," notwithstanding their
prior resignations. The complaint was thereafter amended
to refer also to the letters sent to Nauman, Walker, and
Hillson. Subsequently, however, a second amendment was
issued which deleted the substantive paragraph quoted
above and substituted therefor an allegation that, as to the
six employees, Respondent had acted unlawfully "by charg-
ing the individuals named below with violation of the Con-
stitution of Respondent's International Union and by
threatening to fine employees for crossing a picket line,"
notwithstanding their resignations.
At the hearing, counsel for General Counsel did not elu-
cidate whether or not the amended complaint contemplated
the finding of independent violations, one based upon the
filing of internal charges and the other grounded in "threat-
ening to fine employees." In an opening statement, counsel
simply said, inter alia, "Respondent violated Section
8(b)(l)(A) by initiating internal union charges and threaten-
ing the employees with fines for crossing the picket line."
General Counsel's brief, however, in stating the issues pre-
sented, makes no separate assertion that the letters in and
of themselves constituted violative conduct; it states, in-
stead, as the legal issue presented: "Whether the Respon-
dent violated Section 8(b)(1)(A) of the Act by its threats to
fine employees who resigned and subsequently' crossed the
picket line." The thrust of the legal argument thereafter
made does not address the issue of whether merely sending
the letters to the employees would constitute a violation.
Thus, after reviewing the evidence relating to Thomas'
statements regarding fines to Nordby, Nauman, and Day
on October 4, Thomas' subsequent reference to the possibil-
ity of the imposition of fines on Weber and Day at the later
1230
OIL WORKERS I.OCAI 6 578
union meeting, and the dissemination of Thomas' October 4
remarks to other employees named in the complaint by
Nordby, General Counsel begins his argument by relying
not only on the charging letters, but also on the various
statements made by Thomas and their circulation among
the employees, stating as the governing principle of law.
"The fact that fines have not been levied does not absolve
the Respondent. because it is sufficient to show a violation
of Section 8(b)(1)(A) that charges have been filed. that the
underlying proceedings resolving the charges carrs the po-
tential for fines, and that the potentiality of fines is con-
veyed to individuals who have effectively resigned from the
Union prior to crossing a picket line [citing cases]." The
brief then goes on to argue, on the basis of the facts out-
lined above, that "each of the aforementioned elements" of
the proposition has been satisfied here.
Nowhere does General Counsel expressly contend that
the filing or notification of charges was, standing alone. vio-
lative of the Act. It can therefore be argued that General
Counsel has deliberately chosen to refrain from complain-
ing that the filing of charges, and notification thereof to the
charged employees, constituted violative acts. To so find,
however, would require a conclusion that General Counsel
has rejected a long line of cases basing violations on such
facts.
Although one of the cases cited by General Counsel. Lo-
cal Union No. 1233, United Brotherhood of Carpenters and
Joiners of.4 merica (Polk Construction Co.Co. Inc.) 231 NLRB
756, 760 (1977). does appear to suggest that a finding is
required, as expressed by General Counsel. that "the poten-
tiality of fines is conveyed to individuals who have effec-
tively resigned." a solid body of precedent, including the
other case cited by General Counsel, Local Union 2131,
International Brotherhood of Electrical Workers, .4 FL ('IC
(Rucker Electronics), 217 NLRB 46, 47. 48, 50 (1975).
stands for the rule that simply filing "written charges." or
even threatening to file charges, constitutes "restraint" and
"coercion" within the meaning of Section 8(b)(1 ), without
requiring a showing that the nature of the potential penalty
was explicitly brought to the attention of the charged em-
ployee. Communications Wtorkers of America. AFI. CIO
(Rochester Telephone Corporation), 194 NLRB 872, 873
(1972) ("written charges" filed against a nonmember). Ac-
cord, Penzel Construction Company, Inc., 185 NLRB 544,
545 (1970): International Brotherhood of Electrical Workers.
Local Union No. 34, A FI. (10 (Protection .4A lar., Inc.),
208 NLRB 639 (1974); Local Union No. 13, an .4filiate of
the United Association of Journeynien and A4pprenticces of the
Plumbing and Pipe Filtting Industrn of the United States and
Canada (Mechanical Contractors Association of Rochester,
Inc.), 212 NLRB 477, 479. 480 (1974): United Steelworkers
of America, AFL CIO CLC, Local Union 5550 (Redfield
Company), 223 NLRB 854 (1976); Internatlional Alliance of
Theatrical Stage Employees (RKO General, Inc.) 223
NLRB 959, 960 (1976): Communications Workers of Amer-
ica, Local 1122 (New York Telephone Company), 226 NLRB
97, 98-99 (1976). These cases, arising under Section
8(b)(l)(A), clearly' rest on the premise that fines are implicit
when disciplinary proceedings are initiated or threatened
without an express limitation as to the range of sanctions
available; this is most obviously true in the case of resigned
members, who ipso facto cannot be simply expelled.'
TIhe complaint alleges that Respondent violated the Act
by "charging the individuals named": all the conceivable
evidence relating to that issue has been adduced in the rec-
ord: and General Counsel has, as noted above, cited in his
brief one of the many cases standing for the principle that
the filing of such charges amounts to Section 8(b) restraint
and coercion. In these circumstances, it seems appropriate
to find violations based on the sending of the letters alone.
without regard to whether the resigned members were ex-
pressly warned that a fine might result from the charges
(and despite General Counsel's emphasis on that factor in
his brief, which may be due simply to an excess of caution).
Rochester Cadet Cleaners, Inc.. 205 NL.RB 773 (1973).
Were I to confine analysis to the framework outlined by
General Counsel, I would still find a violation. but only
one.
Addressing the summarizing contentions made by Gen-
eral Counsel on brief, I agree that "[t]he individuals named
in the complaint effectively resigned from the Respondent
prior to crossing the picket line," that "[clharges were
brought against each for crossing the picket line,."' and that
"[olne of the potential consequences of the proceedings in
which the charge would be considered is fines."" However,
I am not in complete accord with General Counsel's final
and specific contention that "the threat of tines was effec-
tively conveyed to the individuals named in the complaint
by Respondent's Business Representative. Betty Thomas,
by her statements and conduct throughout October 1977."
Weber, first of all, is a special case. She testified that after
resigning on October 10 and returning to work on October
I 1, she had a change of heart which she communicated to
Thomas on October 12, before she received the notice of
charge. Thomas told her that "everything would be
dropped . . . and to just disregard the letter." She did so,
without reading it. Accordingly, since the charge was effec-
tively rescinded before Weber even received the letter, since
she did not read the letter, and since there is no evidence
that she was ever warned of the "potentiality of fines." ei-
ther by Thomas or by any other employee. I perceive no
basis for concluding that Respondent engaged in the sort of
conduct vis-a-vis Weber which General Counsel's argument
would require for a finding of violation.
Futhermore. it would not suffice to argue broadly. as
General Counsel does, taht the remarks made by Thomas
on October 4 or thereafter necessarily had an intimidating
effect on the remaining five employees; a more precise con-
sideration of the relationship of the threats to both the
named employees and to their postresignation strikebreak-
ing would be in order.
'' For similar cases under Sec. 8(bH K(B), see San Francisro-Oakland Mail-
rs L.nion No. 8. International Typographical Unmon fNorthwest Publications,
Inc.), 172 NL RB 2173 (1968); Nesi Metleo DiLtrict Caounil of (Carpenters and
Joiners of lmerica (A S Horner, Inc.). 176 NL RB 797, 798 (1969): San
Francisco 7pographical LUnion No. '1. International Tvpographical Union,
A'4L CIO (California Nedspapers. Inc.), 192 NLRB 523 (1973:. Lnited
Brotherhood of Carpenters and Joinerst O .4mirica. lcal Lnion 751/ .4FL
CIO (Paul J Ortega and Melvin T ,4zesedo, db'ha Imperial Cahinet Shop),
204 NLRB 1102 (1973).
12 With one exception. considered below.
" Art XII, sec 1, of the union constitution so pros ides
1231
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel argues, referring to the meeting of Octo-
ber 4, that the "circumstances of that meeting and discus-
sion during it clearly indicate that Thomas' remarks con-
templated conduct postdating both Nauman's and other
resignations that might later occur." I agree. As fbund
above, Thomas' statements to Nauman, Nordby, and Day
related to the possibility of imposition of fines "of up to
$500" in a conversational context clearly referring to the
expressed desires of the employees to resign from Respon-
dent and return to work. Accordingly, I would find, apply-
ing the theory advanced by General Counsel, that the refer-
ence to that possibility, coupled with the effect of the
subsequent letter of charges to Nauman after he had validly
resigned, would have tended to coerce Nauman and vio-
lated Section 8(b)(I)(A).'4
There would be no like basis for making a similar finding
as to the remaining four employees. The testimony of Nord-
by that he repeated a portion of this conversation to Kuth,
Handahl, and Hillson. even if relevant,' discloses only that
he told them Thomas had spoken of the possibility of fines
for crossing a picket line, without any showing that the
remarks related to employees who first submitted resigna-
tions. General Counsel's brief acknowledges the need for
"distinguishing between the preresignation and postresigna-
tion conduct," and in Local Union No. 1233, United Broth-
erhood of Carpenters and Joiners of ,4 merica (Polk Construc-
tion Co,, Inc.), supra, 231 at 760, fn. 7. Administrative lIaw
Judge Boyce noted:
Touchstone also raised the possibility of fines during
the July 3 meeting in which the strike was announced.
There is neither contention nor evidence, however, that
Ortega or Ward had resigned by then, nor that Touch-
stone's remarks contemplated conduct postdating such
resignations as might later occur. It therefore is con-
cluded that nothing said at the July 3 meeting was an
8(b)(1)(A) threat or tainted the later disciplinary pro-
ceedings. Since the proviso to Sec. 8(b)(1)(A), as con-
stituted, preserves the right of a union to impose fines
for conduct while a member, it is both lawful and salu-
tary that members be forewarned of the possibility.
The foregoing reasoning would apply as well to the testi-
mony of Hillson that about a week after the strike began, he
heard Thomas speak to some employees on the picket line
"about the possibility of what they could do to Loren
Day"-"that she would try and fine Loren Day." I would
first note that the record contains no evidence that Loren
Day resigned before he returned to work, and the fact that
he is not named in the complaint strongly suggests that the
contrary is true. Thus, for both that reason and in the ab-
sence of any evidence that Hillson or the other employees
were told or were aware that Day had resigned before he
returned to work, there would be no foundation for believ-
ing that they would have understood the remark as any-
4 Neither Day nor Nordby is named in the complaint as an object of
restraint or coercion.
I1 It is arguable whether the foreseeable dissemination of Thomas' remarks
to other employees could be relied upon as an element in finding a post hoc
violation, even on General Counsel's theory, as to such other employees who
subsequently resign and receive a letter of charges.
thing but a lawful prediction of the potential consequences
to a member from strikebreaking.
Finally, Rodney Walker testified that at a union meeting
which, I have found, was held on October I 1, Thomas told
the employees that "Loren Day and Kathy Weber crossed
the picket line and charges were being filed and they could
be fined." Again, the record is devoid of evidence that
Walker or any employees in attendance and named in the
complaints were aware that Day and Weber had resigned
before crossing the line (if in fact Day had); that is an evi-
dentiary connection which I would not be willing to as-
sume.7
In sum, if I were to apply only the narrow theory dis-
cussed, I would conclude that the letter of charges sent to
Jeffrey Nauman by Respondent on October 18, 1977, taken
in the light of the remarks made to him on October 4 by
Thomas, unlawfully threatened Nauman with the imposi-
tion of a fine for having crossed the picket line.'" As to the
other employees named in the complaint, I would find the
evidence insufficient to establish, either directly or secon-
darily, on the theory pressed by General Counsel, that the
specific factual underpinning urged that the potential of
fines for post-resignation strikebreaking was imparted to
the named employees has been made out.1?
As previously discussed, however, the cases hold that the
filing of charges and notification thereof itself has a re-
straining and coercive effect, despite the absence of commu-
nication to the charged employees of the specific conse-
quences which may attach; the complaint adequately
alleges such a violation: and the matter has been fully liti-
gated. Accordingly, I find that by charging and sending
notification of the charges and future proceedings to Han-
duhl. Kuth, Nauman, Walker, and Hillson.?o Respondent,
through Betty Thomas, its agent, violated Section
8(b)( I)(A).
CON(CI t.SIONS () LA W
1. Gordy's, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By filing charges against nonmembers and notifying
such nonmembers of the charges and of further proceedings
to be held upon the charges, Respondent, in October 1977.
violated Section 8(b)(1)(A) of the Act.
1' Nordby testified that he was present and heard Thomas say that
"charges had been filed and were being sent to the executive board" but
could recall no mention of fines. Nordb) is not named in the complaint. not
is this statement separately alleged as a violation.
" Indeed, since Weber had only resigned on October 10. and rescinded her
resignation on October 12. it seems unlikely that this short-lived withdrawal
would have been broadcast to the employee communit.
iB It will be recalled that at the hearing counsel for General Counsel ex-
pressly stated that the October 4 remarks were not alleged to be a separate
violation.
19 Ihe foregoing conclusions would, of course, be based upon the state of
the evidence as of the time of the Apnl hearing If further action on the
charges were to be undertaken by Respondent, resulting in the imposition of
fines against these resigned employees for their postresignation conduct, then
further proceedings would be in order. Booster Lodge 'No 405, International
Association of Machinists and Aerospace )4orkers, AFL (I10 (The Boeing
Compnav), 185 NLRB 380, 381 (1970)
2o I exclude Weber for the reasons set out above.
1232
OIL WORKERS. LOCAL 6-578
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(b)(I )(A) of the Act.
I will recommend that Respondent be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act, as set forth be-
low.
On the basis of the above findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act. I issue the following recommended:
ORDER2
Oil, Chemical and Atomic Workers International Union,
Local 6 578. AFL-CIO, Austin. Minnesota. its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Restraining or coercing employees who are not mem-
bers of Respondent in the exercise of their rights guaran-
teed by the Act by bringing charges against such nonmem-
bers, notifying such nonmembers of such charges, and
notifying them of further proceedings to be held on such
charges, because they crossed a picket line.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed by Section 7
of the Act.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Cancel, withdraw, and rescind the charges which
have been filed against Kirk Handahl, George Kuth, Jeffrey
Nauman, Rodney Walker, and Randall Hillson, expunge
from its files and records any reference thereto, and imme-
diately notify such employees by letter that such action has
been taken.
(b) Post at its business offices and meeting halls copies of
the attached notice marked "Appendix."2" Copies of said
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
12 In the event that this Order is enforced by ajudgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
notice, on forms provided by the Regional Director for Re-
gion 18, after being duly signed by Respondent's represent-
ative, shall he posted by it immediately upon receipt thereof
and be maintained by it for 60 days thereafter, in conspicu-
ous places, including all places where notices to members of
Respondent are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by other material.
(c) Furnish the Regional Director for Region 18 signed
copies of the aforesaid notice, in the number designated bh
the Regional Director, for posting by Gordx's. Inc.. it it is
willing, at places where it customarily posts notices to em-
ployees.
(d) Notify the Regional Director for Region 18, in writ-
ing, within 20 days from the date of this Order. what steps
have been taken to comply herewith.
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOrICE To EMPLOYEES AND MEIMBIRS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE wit.l NOT file or process internal union charges
against former members who have validly resigned and
crossed a picket line in order to return to work during
a strike.
WI'. wVt.l NOI in any like or related manner restrain
or coerce employees in the exercise of their rights un-
der Section 7 of Act.
WE WILL cancel, rescind, and withdraw the charges
filed in October 1977 against Kirk Handahl. George
Kuth, Jeffrey Nauman, Rodney Walker, and Randall
Hillson: BE W wILI remove all references to such charges
from our records; and WE WiLl notify those employees
by letter that we have done so.
OIL, CHEMICAIl AND ATOMI( WORKERS INIERNA-
IIONAi UNION, LOCAL 6 578, AFI.-CIO
1233