Pattern Makers (Michigan Model Mfrs.)

National Labor Relations Board - Board Decisions

Mar 31, 1993

310 N.L.R.B. 929 (N.L.R.B. 1993)

929
310 NLRB No. 153
PATTERN MAKERS (MICHIGAN MODEL MFRS.)
1 No exceptions were filed to any other finding by the judge.
2 NLRB v. Granite State Joint Board, 409 U.S. 213, 217 (1972).
3 All dates are in 1989 unless otherwise stated.
4 The return receipt established the day of receipt, and credited tes-
timony established that mail was not delivered to union offices be-
fore 9:30 a.m. at the earliest.
5 The judge made no findings on the suit, but we make these fac-
tual findings on the basis of Smith’s uncontroverted testimony.
Pattern and Model Makers Association of Warren
and Vicinity, Pattern Makers League of North
America, AFL–CIO and Michigan Model Man-
ufacturers Association, Inc. and Rite Industrial
Model, Inc. and Paul H. Kurkowski and Wayne
Russell and Daniel Corey. Cases 7–CB–7840, 7–
CB–8090, 7–CB–8073, 7–CB–8090(2), and 7–
CB–8129(7)
March 31, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On May 23, 1991, Administrative Law Judge Don-
ald R. Holley issued the attached decision. Charging
Party Rite Industrial Model, Inc. filed exceptions and
a brief in support limited to the fining of employee
Dennis Smith.
The Board has considered the decision and the
record in light of the exceptions and brief, and is
adopting the judge’s rulings, findings, and conclusions1
as modified below.
It is undisputed in this case that a union violates
Section 8(b)(1)(A) of the Act by disciplining an em-
ployee for conduct engaged in after the employee has
resigned from the union.2 The issue is whether the Re-
spondent (the Union) violated Section 8(b)(1)(A) of
the Act by fining employee Dennis Smith for crossing
a picket line to return to work, when the crossing oc-
curred on the fourth day after Smith had mailed his
resignation to the Union but a few hours before the
Union actually received his resignation. As explained
in section III below, in earlier cases the Board has es-
tablished certain presumptions to aid in the determina-
tion of when a union member’s mailed resignation is
effective for the purpose of escaping the application of
union rules, and it has also established an exception to
those presumptions for cases in which the exact hour
of the Union’s receipt of the resignation is established
by record evidence. As further explained, we are modi-
fying the Board’s standards for determining the time at
which a mailed resignation is effective. Pursuant to
that modification, we reverse the decision of the judge,
who had dismissed the complaint as to the fine im-
posed on Smith, and we accordingly find that the
Union’s discipline of Smith violated the Act as al-
leged.
I. RELEVANT FACTUAL FINDINGS
Smith was a member of the Union and an employee
of Rite Industrial Model, Inc. (Rite or the Charging
Party). Rite was a member of a multiemployer associa-
tion that was conducting negotiations with the Union
for a new agreement in the spring of 1989.3 On March
13, when negotiations broke down, the Union com-
menced a strike against members of the association, in-
cluding Rite. As the strike wore on, some of the em-
ployees began resigning their memberships in the
Union and returning to work for the struck employers.
Smith decided to take that course. He executed a
resignation from the Union and dispatched it by cer-
tified mail on Thursday, March 30, 1989. He crossed
the picket line at 7 a.m. the following Monday, April
3. The Union received his resignation on April 3 at
some time after 9:30 a.m.4
In a letter dated September 6, the Union charged
Smith with a violation of ‘‘League Law 49, Clause 5’’
for crossing the Union’s picket line and returning to
work for Rite during the strike, and stated that he was
required to attend a meeting of the Union’s executive
committee concerning the matter. He did not attend,
and he was found guilty by the committee and ulti-
mately fined $4989 for violation of the League Law.
The Union subsequently sued Smith in state court to
collect the fine. At the time of the hearing in this un-
fair labor practice proceeding, the state suit had not yet
come to trial, but Smith had already incurred a bill of
$1500 for the services of a lawyer to defend him in
the suit. Smith had not yet made any payments to the
lawyer.5
II. THE JUDGE’S DECISION
The judge noted that the Union’s fine would violate
Section 8(b)(1)(A) of the Act if it amounted to a pen-
alty for conduct that Smith had engaged in after he
had resigned from the Union. Applying a Board rule
that union members’ resignations are deemed effective
only upon receipt by the union, he found that because
Smith had crossed the picket line at 7 a.m., more than
2 hours before the Union actually received his resigna-
tion, he had crossed at a time when he was still a
member of the Union. The judge acknowledged that,
under Board precedents, it is presumed that a resigna-
tion deposited in the mail is received the day after
mailing and that an additional presumption applies
when the employee crosses on the day of receipt but
the actual time of receipt is unknown. He noted, how-
ever, that none of those presumptions applies when, as
here, the exact time of receipt is established by record
evidence. Therefore, he concluded, Smith’s resignation
was not yet effective when he crossed the picket line,
and the Union’s discipline of Smith accordingly did
not violate the Act.
930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Hendricks-Miller Typographic Co., 240 NLRB 1082, 1098 fn. 29
(1979); United Construction Workers Local 10 (Erhardt Construc-
tion Co.), 187 NLRB 762, 763 (1971).
7 Teamsters Local 610 (Browning-Ferris Industries), 264 NLRB
886, 899–900 (1982).
8 Iron Workers Local 627 (National Steel), 298 NLRB 29 fn. 1
(1990); Machinists Lodge 1233 (General Dynamics), 284 NLRB
1101, 1102 fn. 9 (1987); Teamsters Local 538 (Passavant Health
Center), 275 NLRB 730 (1985); Teamsters Local 610 (Browning-
Ferris Industries), supra.
9 Electrical Workers IBEW Local 340 (Hulse Electric), 273 NLRB
428, 430 fn. 12 (1984), citing American Nurses’ Assn., 250 NLRB
1324, 1329 (1980). See also United Construction Workers Local 10
(Erhardt Construction Co.), supra (union discipline not unlawful
where imposed for picket line crossing on day resignations received
and where record does not reveal exact time of receipt).
10 We overrule those cases which have applied different union res-
ignation rules to the extent they are incompatible with this standard.
11 For example, if an employee deposits the resignation in a mail-
box on a Sunday that mailbox indicates no Sunday pickup, the em-
ployee can reasonably expect that the letter will be postmarked on
a Monday.
III. ANALYSIS
A. Rules Governing Effective Date for
Resignations from a Union
The judge correctly summarized Board law in the
matter of union discipline imposed on employees for
conduct engaged in after they have deposited their res-
ignations in the mail. That law provides that mailed
resignations are effective only upon receipt by the
union.6 In the absence of evidence establishing the
exact day of receipt, the Board presumes that the res-
ignation was received the day after mailing.7 For cases
in which an employee crosses a picket line on the day
the mailed resignation is received, Board precedents
are somewhat at variance. According to most it is pre-
sumed—in the absence of evidence establishing the
exact time of receipt—that the resignation was re-
ceived at some hour before the employee crossed the
picket line.8 According to others, the presumption is
that the resignation was received at close of business
on that day.9
Under existing Board law, it would appear that the
Union’s discipline of Smith was lawful, because the
evidence of actual time and day of receipt showed that
Smith crossed the picket line before the Union actually
received his resignation. In the absence of such evi-
dence, the discipline would have been unlawful under
either line of the presumption cases, because Smith’s
resignation would have been deemed effective, at the
latest, at the close of business on the Friday before the
Monday on which he crossed the picket line. Thus,
when Smith crossed the picket line, even though he
had proof of his date of mailing and had waited for
a day longer than required under the Board’s presump-
tions, he returned to work under the risk that—unbe-
knownst to him—the Union might be able to prove re-
ceipt of the resignation at a later time. This uncertainty
concerning whether he was still lawfully subject to the
Union’s power to discipline represents a serious flaw
in the set of principles that the Board has heretofore
applied in this area. In our view, we should attempt to
construct standards that maximize the ability of parties
involved in conduct affected by the standards to deter-
mine their legal rights. Where the rules touch on mem-
bership in a union, they should also reflect the con-
gressional policy of voluntary unionism noted by the
Supreme Court in Pattern Makers League v. NLRB,
473 U.S. 95 (1985). For an employee seeking to exer-
cise the Section 7 right to resign from a union and re-
frain from concerted activity by returning to work dur-
ing a strike, it is important to be able to discern how
soon after a resignation has been submitted by mail
that resignation will be deemed effective. For a union
seeking to enforce strike solidarity among its member-
ship, it is important to know at the time when the
commencement of disciplinary proceedings is con-
templated whether the resignation became effective be-
fore the employee crossed the picket line.
In light of the foregoing considerations, we have re-
considered the Board’s rules governing effective dates
of mailed resignations for the purposes of immunity
from union discipline, and we have formulated the fol-
lowing new standard.10 We now hold that a labor or-
ganization may require that, as a condition of resigna-
tion from membership, a member provide written noti-
fication of the member’s intention to resign from the
labor organization. When the member personally
serves an agent of the labor organization, including the
business agent at the member’s work place, as well as
at the union hall, with a notification of resignation, the
resignation shall be effective upon receipt. When serv-
ice of the resignation is by mail, the effective time and
date of the resignation shall be 12:01 a.m. local time
on the day following the deposit in the mail. The day
regarded as the date of deposit shall be determined by
postmark. This shall apply to all methods of mail de-
livery, including but not limited to regular mail, cer-
tified mail, registered mail, and special delivery.
We believe that this set of rules will allow parties
to assess the legal consequences of their conduct with
a reasonable degree of certainty. An employee seeking
to exercise his or her Section 7 rights to resign from
the union and refrain from striking has no difficulty
knowing when he personally delivered a written res-
ignation to a union agent or when he deposited a res-
ignation in the mail and can easily determine when it
would be postmarked.11 The employee need only wait
until 1 minute past midnight to be able to cross the
line without coming under the threat of union fines or
other discipline. By contrast, a union which seeks to
discipline its members for crossing a picket line does
not necessarily need to know the exact date of resigna-
931PATTERN MAKERS (MICHIGAN MODEL MFRS.)
12 NLRB v. Bufco Corp., 899 F.2d 608, 609 (7th Cir. 1990),
quoting from NLRB v. Chicago Marine Containers, 745 F.2d 493,
499 (7th Cir. 1984); Clark-Cowlitz Joint Operating Agency v. FERC,
826 F.2d 1074, 1081 (D.C. Cir. 1987) (en banc).
13 NLRB v. Bufco Corp., supra.
14 It is not, in any event, entirely clear that the Union was care-
fully tailoring all of its actions to existing Board law. Thus, with re-
spect to employee Daniel Corey, the judge credited testimony that
his resignation had been deposited in the mail by March 27, that the
person who had mailed it for Corey received a return receipt—al-
most surely for that letter—which was dated March 28 and signed
by a union agent, and that the local post office customarily guaran-
teed overnight delivery for a letter transmitted between the locations
at issue. The judge found this to constitute an independent factual
basis for the Board’s legal presumption that mailed resignations are
received the next day. He thus implicitly discredited the testimony
of a union witness that the Union did not receive the resignation at
all. The judge further discredited union witnesses’ testimony that
Corey had crossed the picket line on March 28, finding instead that
Corey did not cross until April 1, 5 days after the resignation was
mailed. According to the judge’s apparent findings (to which no ex-
ceptions have been filed), the Union fined Corey even though, under
the Board’s then existing law, this was a plainly unlawful penalty
for postresignation conduct.
tion at the moment an employee crosses. It does, how-
ever, need to have this information when the time
comes to investigate the possible violation of a union
rule and start up its fine-imposing machinery. By the
time a union is ready to do that with respect to an em-
ployee who resigned by mail, it is likely that it will
have received the mailed resignation. A rule that al-
lows the union to determine the effective date of a res-
ignation by simply checking the postmark of what it
received should satisfy the union’s need for a reason-
able degree of certainty about the lawfulness of pro-
ceeding to discipline an employee for crossing the
picket line.
Applying those rules to the facts of this case, we
hold that Smith’s resignation was effective as of 12:01
a.m. on Friday, March 31, 1989, the day following de-
posit as established by the postmark on the certified re-
ceipt. He therefore was no longer a member of the
Union when he crossed the picket line on Monday, and
the Union violated Section 8(b)(1)(A) of the Act by
fining him for that conduct, assuming that it is proper
to apply the modified rules to that conduct. For the
reasons set out in section B below, we find that we
may properly find the violation.
B. Retroactive Application of the Rule is
Appropriate
Under settled retroactivity doctrine, a new rule de-
veloped in an adjudication is generally applied to the
parties in the case in which it is announced; an excep-
tion to retroactive application is made for cases in
which it would work a ‘‘manifest injustice.’’12 In de-
termining whether retroactive application will produce
manifest injustice, we consider the following factors:
the reliance of the parties on preexisting law, the effect
of retroactivity on accomplishment of the purposes of
the underlying law which the decision refines, and any
particular injustice to the losing party under retroactive
application of the change of law.13
In considering those factors as applied to the facts
of this case, we find that application of the new rules
governing effective dates of union resignations will not
work a manifest injustice. First, the Union did not
enjoy complete certainty as to how it would fare under
Board law when it fined Smith. Rather it would have
known that if it was able to persuade the trier of fact
as to actual time of receipt of the resignation, it could
fine Smith for crossing 2 hours earlier. Otherwise the
presumptions would apply and the fine would be un-
lawful.14
Second, the purpose of Section 8(b)(1)(A), the law
at issue in this proceeding, is to protect employees
from union coercion directed at their exercise of Sec-
tion 7 rights; and, as noted above, an important policy
of the Act is the principle of voluntary unionism. In
our view, applying the modified rules announced in
this case to the Union’s fining of Smith furthers these
statutory purposes. By retroactive application of the
modified rules, we are precluding the imposition of
union discipline on someone who had mailed, by cer-
tified mail, his resignation from union membership 3
days before he sought to exercise his rights free of
union penalties. These purposes would not be served
by keeping an employee in Smith’s position subject to
the Union’s disciplinary machinery longer than abso-
lutely necessary to protect the Union’s interest in en-
forcing adherence to its rules by those who are clearly
its members.
Finally, we see no great injustice to the Union in
finding a violation here and requiring it to rescind the
fine against Smith and reimburse him for the legal fees
he incurred in defending the collection suit. It would
at least seem a greater hardship to saddle Smith with
the burden of paying a substantial fine for exercising
what we have determined were his rights under Section
7 of the Act.
Accordingly, we grant the Charging Party’s excep-
tion and amend the judge’s Conclusions of Law and
remedy as indicated below.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3.
‘‘3. By imposing a court collectible fine upon em-
ployees Daniel Corey and Dennis Smith for crossing
its picket line and returning to work for their employ-
ers after they had resigned their membership in the
Union, the Respondent violated Section 8(b)(1)(A) of
the Act.’’
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All date are 1989 unless otherwise indicated.
AMENDED REMEDY
Having found that the Respondent unlawfully im-
posed fines upon Daniel Corey, Martin Grapentin, and
Dennis Smith, we will order the Respondent to rescind
the fines, and to reimburse those individuals for any
sums they may have paid for the fines levied against
them, with interest computed in the manner set forth
in New Horizons for the Retarded, 283 NLRB 1173
(1987), and to expunge all records documenting the
disciplinary action against them, and notify them in
writing that this has been done. We will also order the
Respondent to reimburse Dennis Smith for legal ex-
penses he incurred in defending the collection suit filed
against him.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below, and orders that the Respondent, Pat-
tern and Model Makers Association of Warren and Vi-
cinity, Pattern Makers League of North America,
AFL–CIO, its officers, agents, and representatives,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Imposing court collectible fines upon Daniel
Corey, Dennis Smith, or any other employee for cross-
ing a picket line and returning to work for his em-
ployer after he has resigned his membership in the
Union.’’
2. Substitute the following for paragraph 2(a).
‘‘(a) Rescind the fines imposed upon Daniel Corey,
Dennis Smith, and Martin Grapentin, reimburse those
individuals for any sums they may have paid for the
fines levied against them in the manner set forth in the
remedy and amended remedy sections of the judge’s
decision and this Decision and Order, respectively, and
expunge all records documenting the disciplinary ac-
tion taken against the named individuals and notify
them in writing that this has been done.’’
3. Add the following as paragraph 2(b) and renum-
ber the remaining paragraphs.
‘‘(b) Reimburse Dennis Smith for legal expenses he
incurred in defending the collection suit against him.’’
4. Substitute the attached notice for that of the ad-
ministrative law judge.
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 or-
dered us to post and abide by this notice.
WE WILL NOT impose court collectible fines upon
Daniel Corey, Dennis Smith, or any other employee
for crossing a picket line and returning to work for
their employers after they have resigned their member-
ship in the Union.
WE WILL NOT restrain and coerce Rite Industrial
Model, Inc. in the selection of its representation for the
purposes of collective bargaining or the adjustment of
grievances by imposing fines, or otherwise disciplining
Martin Grapentin, or any other supervisor acting in
like capacity, for crossing a picket line to perform su-
pervisory functions, including adjustment of griev-
ances.
WE WILL NOT threaten by letters to employee-mem-
bers to impose heavy fines upon members who chose
to resign their membership in the Union.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
WE WILL NOT in any like or related manner restrain
or coerce Rite Industrial Model, Inc., or any other em-
ployer engaged in commerce in its selection of rep-
resentatives for the purpose of collective bargaining or
the adjustment of grievances.
WE WILL rescind the fines imposed upon Daniel
Corey, Dennis Smith, and Martin Grapentin, reimburse
those individuals for any sums they may have paid for
the fines levied against them, with interest, and ex-
punge all records documenting the disciplinary action
taken against the named individuals and notify them in
writing that this has been done.
WE WILL reimburse Dennis Smith for legal expenses
he incurred in defending the collection suit brought
against him.
PATTERN AND MODEL MAKERS ASSO-
CIATION OF WARREN AND VICINITY,
PATTERN MAKERS LEAGUE OF NORTH
AMERICA, AFL–CIO
Richard F. Czubaj, Esq. and Janice Jones, Esq., for the Gen-
eral Counsel.
Christopher P. Legghio (Miller, Cohen, Martens & Ice,
P.C.), of Southfield, Michigan, for the Respondent.
Craig S. Schwartz, Esq. (MacDonald and Goren), of Bir-
mingham, Michigan, for the Charging Party Rite Industrial
Model, Inc.
James Perry, Esq., of Detroit, Michigan, for the Charging
Party Wolverine.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On an
original charge filed in Case 7–CB–7840 on March 21,
1989,1 by Michigan Model Manufacturers Association, Inc.
933PATTERN MAKERS (MICHIGAN MODEL MFRS.)
(Manufacturers Association) the Regional Director for Re-
gion 7 of the National Labor Relations Board issued a com-
plaint against Pattern and Model Makers Association of War-
ren and Vicinity, Pattern Makers’ League of North America,
AFL–CIO (Respondent or the Union) on April 28. The com-
plaint alleged that Respondent had violated Section
8(b)(1)(A) of the National Labor Relations Act by distrib-
uting a letter concerning union fines among employee-mem-
bers. On July 21, the Regional Director approved an informal
settlement agreement entered by the Respondent in that case.
On October 16, Paul Kurkowski filed the charge in Case
7–C–8073. Thereafter, on December 1, the Regional Director
withdrew his approval of the July 21 informal settlement
agreement, consolidated Cases 7–CB–7840 and 7–CB–8073
for trial, and issued an amended complaint dated December
1. The amended complaint realleged the matter set forth in
the original complaint and, additionally, alleged that Re-
spondent had violated Section 8(b)(1)(A) by fining
Kurkowski for returning to work at Wolverine Products, Inc.
after he had resigned his membership in the Union. Respond-
ent filed timely answer denying it had engaged in the unfair
labor practices alleged in the amended complaint.
The original charge in Case 7–CB–8090 was filed on No-
vember 6 by Rite Industrial Model, Inc. (Rite), and the origi-
nal charge in Case 7–CB–8090(2) was filed by Wayne Rus-
sell on December 8. Thereafter, on December 26, the Re-
gional Director consolidated Cases 7–CB–7840, 7–CB–8073,
7–CB–8090, and 7–CB–8090(2) for trial and issued an
amended consolidated complaint, which realleged the matter
set forth in the December 1 complaint, and, additionally, al-
leged that Respondent had violated Section 8(b)(1)(A) of the
Act by fining employees Russell, Dennis Smith, and Jeffrey
Grapentin for returning to work after they had resigned their
membership in the Union, and that it violated Section
8(b)(1)(A) and (B) of the Act by fining Martin Grapentin, an
alleged supervisor and an adjuster of grievances, for crossing
a picket line and working at Rite during a strike. Respondent
filed timely answer denying it had violated the Act as al-
leged.
On December 15, five additional employees filed charges
against Respondent. On that date, Carl Chetosky filed the
charge in Case 7–CB–8129(1), James Waun Jr. filed the
charge in Case 7–CB–8129(2), Edward Stacey Jr. filed the
charge in Case 7–CB–8129(3), Gary Macy filed the charge
in Case 7–CB–8129(4), and Michael Macy filed the charge
in Case 7–CB–8129(5). Thereafter, on December 18, Daniel
Corey filed the charge in Case 7–CB–8129(7). Subsequently,
on January 30, 1990, amended charges were filed in Cases
7–CB–8129(1), 7–CB–8129(2), 7–CB–8129(3), 7–CB–
8129(4) and 7–CB–8129(5). On January 31, 1990, the Re-
gional Director consolidated Cases 7–CB–7840, 7–CB–8090,
7–CB–8129(1) through (5), and 7–CB–8129(7) for trial and
issued a second amended consolidated complaint. In addition
to realleging the 8(b)(1)(A) and (B) violations set forth in the
December 26 amended consolidated complaint, the January
31, 1990 complaint alleged that Respondent violated Section
8(b)(1)(A) of the Act by imposing fines on employees
Chetosky, Waun, Stacey, Macy, and Corey for returning to
work after they had resigned their membership in the Union.
Respondent filed timely answer to the January 31, 1990 com-
plaint denying paragraphs alleging the filing and service of
the various changes, the commerce allegations of the com-
plaint, and denying it had committed the violations alleged
in the complaint.
By order dated April 3, 1990, the Regional Director sev-
ered, and dismissed, those portions of the January 31, 1990
second amended consolidated complaint which pertained to
Cases 7–CB–8129 (1) through (5) and that portion of the
charge in Case 7–CB–8090, which pertained to Jeffrey
Grapentin.
On June 15, 1990, Respondent filed a Motion for Partial
Summary Judgment with the Board seeking dismissal of the
complaint allegations concerning the fines imposed on em-
ployees Russell and Kurkowski and concerning the March
20, 1989 letter to employee members. By Order dated July
11, 1990, the Board denied the motion.
The trial was held in this proceeding in Detroit, Michigan,
on October 1 and 2, 1990. All parties appeared and were af-
forded full opportunity to participate. At the outset of the
trial, Respondent amended its answer to admit: paragraphs
1(a) through 1(d), paragraphs 1(j) (filing and service of
charges); and paragraphs 2(a), (b), and (c), 3(a), (b), and (c),
and 5(a) and (b) of the complaint (commerce allegations).
Additionally, counsel for General Counsel was permitted to
amend paragraph 14 of the complaint by adding reference to
paragraph 11 in paragraph 14.
The complaint in its final form alleges: that Respondent
violated Section 8(b)(1)(A) by fining employees Wayne Rus-
sell, Paul Kurkowski, Daniel Corey, and Dennis Smith for
postresignation conduct; that Respondent violated Section
8(b)(1)(A) and (B) by fining alleged Supervisor and Griev-
ance Adjuster Martin Grapentin for working behind a picket
line without resigning his membership; that Respondent vio-
lated Section 8(b)(1)(A) by failing to fulfill its duty of fair
representation and its fiduciary duty by failing to give the
fined members an accounting of how the fines were deter-
mined and the period of time they covered; and finally, that
Respondent violated Section 8(b)(1)(A) by publishing a
March 20, 1989 letter which threatened to fine members who
crossed a picket line.
On the entire record, and from my observation of the wit-
nesses who appeared to give testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted, and I find, that Manufacturers Association,
Rite and Wolverine Products, Inc. (Wolverine) are Michigan
corporations which are employers engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that the Respondent Union is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Manufacturers Association is an organization composed of
employers engaged in the design and manufacture of models
and tooling aids and exists for the purpose, inter alia, of rep-
resenting its employer members in negotiating and admin-
istering collective-bargaining agreements with the Respond-
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 See R. Exhs. G, H, and I. 3 See G.C. Exh. 1(hh), attachment A.
ent. Rite maintains its office and place of business at 3642
West 11 Mile Road in the city of Berkley, Michigan. It is
engaged in the design and manufacture of models and tooling
aids. It employes 15–20 bargaining unit employees and it is
a member of Manufacturers Association. Wolverine main-
tains its office and place of business at 30233 Groesbeck
Highway in the city of Roseville, Michigan. It is also en-
gaged in the design and manufacture of models and tooling
aids, and it is a member of Manufacturers Association.
In early March 1989, Manufacturers Association was en-
gaged in bargaining with the Union for a new collective-bar-
gaining agreement. At the time, some 14 shops which be-
longed to the Association employed approximately 700 em-
ployees who were represented by Respondent. Negotiations
broke down in mid-March and the Union commenced a
strike against the Manufacturers Association and its members
on March 13.
After the strike began, Manufacturers Association sought
by distributing pamphlets entitled ‘‘UPDATE-89’’ to em-
ployees to cause them to accept its last contract offer or to
abandon the strike and return to work.2 Thus, on March 17,
it distributed a pamphlet entitled ‘‘Employee’s Rights,’’ the
body of which stated:
Most people know that the National Labor Relations
Act protects employees who engage in a lawful eco-
nomic strike. But not everyone realizes that this protec-
tion is not, by any means, complete. In addition, many
people don’t know that the Act also protects employees
who do not want to join the strike.
Economic strikers can be permanently replaced. The
courts have held that, when a strike is over, the em-
ployer may retain the striker replacements and need not
lay them off to make room for returning strikers.
Any employee who wants to cross the picket line
and work during a strike is free to do so without inter-
ference, restraint or coercion from anyone. In addition,
if the employee has resigned from the Union—which he
may do at any time, notwithstanding any union con-
stitutional provisions to the contrary—the union may
not lawfully fine him.
The United States Supreme Court has ruled that a
union may not lawfully fine a former member who has
resigned from the union. It may only fine persons who
are members of the union. In addition, the Supreme
Court has ruled that a union may not restrict the right
of union members to resign from the union at any time,
even during a strike. The Court held that a union con-
stitutional or bylaw provision restricting the members’
right to resign from the union violates the National
Labor Relations Act. This decision was handed down in
a case entitled Pattern Makers League of North Amer-
ica v. NLRB.
From this case, and earlier Supreme Court decisions,
the following rules are clear:
(1) A union member is free to resign from the
union at any time, even during a strike.
(2) A union may not fine a former member who
has resigned from the Union for returning to work
during a strike.
In addition, it is also clear that the union may not
lawfully do any of the following:
(1) Threatening employees with reprisals in the
form of physical harm or loss of accrued pension
benefits if the employees cross a picket line.
(2) Imposing fines and excessive fees or dues as
a condition of readmission to the union.
(3) Attempting to cause an employee’s discharge
under a union shop clause in a contract for failing
to pay fines or excessive fees or dues.
Therefore, not only can the union not fine you for
returning to work if you have resigned from the Union,
it cannot adversely affect your employment for this rea-
son after the strike is over.
The union security clause in the contract, which will
presumably be in effect again when and if this strike
is eventually settled, does not require you to be a mem-
ber of the union. It only requires that you tender to the
union the periodic dues and initiation fees uniformly re-
quired as a condition of membership. So, after the
strike is over, you may choose not to be a union mem-
ber again and still continue as an employee of any of
the union shops, receiving all of the contract fringe
benefits, so long as you tender to the union the amount
of the uniform union dues and initiation fees. This does
not include fines.
Of course, if you are not a union member, you may
not vote at union meeting or exercise any of the other
rights of union members to control the affairs of the
union. However, the union will still have the same duty
to represent you fairly that it has for its members.
As you see, the National Labor Relations Act pro-
tects employees from unlawful actions of unions as
well as companies.
On March 20, Respondent responded to the March 17
Manufacturers Association’s pamphlet by distributing the fol-
lowing letter among employee-members.3
IMPORTANT
In response to the Employers letter #10 dated, March
17, 1989, I will be brief and to the point.
The companies are not aware of our League Laws or
our internal By-Laws.
The facts are that we have won in court and col-
lected a heavy fine from a former member who chose
to resign his membership.
Stand united and don’t fall victim to the employers
bullshit that flows through the mail!
Sincerely,
/s/
John Laughhunn
Business Manager
P.S. I wonder what it costs to resign from their Associa-
tion, and what companies have the guts to do it.
Maybe they should worry about their own members!
935PATTERN MAKERS (MICHIGAN MODEL MFRS.)
4 Robert Stevens became the business agent of Respondent on May
18, 1989. He married Mrs. Stevens on August 18, 1989.
5 See G.C. Exh. 7. 6 See R. Exh. 11.
When the strike began, Joseph Laughhunn was Respond-
ent’s business agent and Jon Winterhalter was its assistant
business agent. As the strike progressed, a number of mem-
bers resigned their membership in the Union and returned to
work for their employers. Rosemary Bonafacio Stevens,4 a
secretary for the Union, testified that initially she opened en-
velopes which contained membership resignations, stamped
them as to date received, and placed them on Laughhunn’s
desk. She credibly testified that, at some point, Laughhunn
and Winterhalter instructed her to not accept certified mail,
and she indicated she followed such instructions for about a
week. Thereafter, she claims the secretaries were not allowed
to open the mail for quite a while. Winterhalter indicated
during his testimony that all resignations of membership
were eventually given to him for processing.
B. The Submission of Membership Resignations by
Alleged Discriminatees and Related Events
The complaint alleges that three Wolverine employees
(Paul Kurkowski, Wayne Russell, and Daniel Corey) and one
Rite employee (Dennis Smith) resigned their membership in
the Union and were thereafter unlawfully fined for
postresignation activity. The facts relating to the situations of
the named employees are summarized below.
The record reveals that those employees employed by both
Wolverine and Rite who expressed a desire to return to work
during the strike were given prepared resignation of member-
ship forms by their employers which stated the employee-
member was resigning from the Union effective imme-
diately.5
William Chase Jr., Wolverine’s president, acknowledged
that Manufacturers Association Attorney Townsend advised
him that employees should transmit membership resignations
by certified mail, and the record reveals the employees in-
volved herein accomplished transmission of their member-
ship resignations in that manner. The facts revealing the res-
ignation action and subsequent experiences of the four
above-named employees are set forth below.
1. Kurkowski and Russell
Kurkowski was employed by Wolverine before the strike
and he remained employed by that entity at the time the
hearing was held in this case.
Kurkowski credibly indicated that he obtained blank res-
ignation of membership forms from Wolverine President
Chase on April 14, and that he executed a resignation form
on the same date. He testified that he joined employee Rus-
sell at a firm named Elfran the following morning (Saturday,
April 15) and Russell then executed a resignation form which
Kurkowski supplied. Kurkowski claims he then folded both
resignation forms together and placed them in an envelope
which contained the Union’s name and address. He testified
Russell agreed to mail the envelope, and that Russell showed
him a receipt on Monday, April 17, which revealed he had
mailed the envelope.
Russell corroborated Kurkowski’s testimony by indicating
he met Kurkowski at his father-in-law’s shop on April 15,
signed a membership resignation, placed it in an envelope
with Kurkowski’s resignation, and mailed the envelope him-
self. He testified he left Wolverine in June 1990, and is pres-
ently working elsewhere.
It is undisputed that Kurkowski and Russell both returned
to work at Wolverine at 7 a.m. on Monday, April 17.
Jon Winterhalter admitted when he appeared to give testi-
mony that he received Russell’s resignation of membership
on the morning of April 17. He denied that he received two
resignations in a single envelope and he denied that the
Union received a membership resignation from Kurkowski at
any time. I do not credit such denials because Respondent’s
current business manager, Robert Stevens, testified that
Winterhalter acknowledged in conversation with him that he
had received two resignations in an envelope and he had
thrown a resignation executed by Kurkowski away. Stevens
was the more impressive witness and I credit his testimony
fully.
Appearing as a witness for Respondent, Timothy George,
supervisor of delivery and collection at the Warren, Michigan
post office, testified that he supervises the letter carriers
working in the above-described facility. He further indicated
he sorts mail, including that for various delivery routes, and
that his facility services Ryan Road and 13 Mile Road where
the Union’s office is located. George testified the first carrier
out of his facility normally leaves at 9:30 a.m., and he could
leave as late as 12:30 p.m. He stated it was not possible that
mail would be delivered to the Union by 7 a.m. George testi-
fied a letter, including a registered letter, mailed from Mount
Clemens, Michigan, and addressed to the Union in Warren,
Michigan, would receive overnight delivery.
By letters dated July 5, 1989, the bodies of which are
identical, Kurkowski and Russell were charged with violation
of the Union’s laws. The body of each letter stated:6
The Executive Committee of the Warren Association
of the Pattern Makers’ League of North America is in
receipt of evidence that states you have engaged in con-
duct detrimental to the interests of the Association, spe-
cifically, crossing the picket line and working for an
employer with whom the Union is in the process of
bargaining a contract.
You are charged with violation of League Law 49,
Clause 5.
The Committee requests your attendance at its meet-
ing on July 25, 1989, at 5:00 P.M. at the Union Office
located at 31845 Ryan, Suite F, Warren, Michigan, to
investigate the above charge. Be assured you shall be
afforded a full and fair hearing, per League Law.
Should you fail to attend, the Executive Committee
will act on the evidence at hand and proceed according
to League Law.
Enclosed is a copy of the League Law Book which
details how charges are processed and how the appeal
process works.
Should you have any questions, do not hesitate to
call the Union Office at 939-6490 and speak with Bob
Stevens, Business Manager or Jon Winterhalter, Assist-
ant Business Manager.
Both employees failed to attend the July 25 meeting, and
both claimed during their testimony that they felt they would
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See R. Exh. 12.
8 See R. Exh. 14. 9 Signing as witnesses were seven persons, including Saunders.
place themselves in jeopardy by attending. Subsequently, by
letters dated August 10, the Union’s executive committee ad-
vised them they had been fined. The body of both letters
were identical, with exception of the amount of fine
(Kurkowski—$6000 and Russell—$2076), and stated:7
It is unfortunate that you have chosen not to respond
to the charges made against you in our letter dated July
5, 1989.
On the basis of evidence submitted the Executive
Committee has found you guilty of League Law 49,
Clause 5. Your action of crossing a picket line and
going to work for an employer with whom the Union
is engaged in bargaining is conduct detrimental to the
interests of the Association.
The Executive Committee at a special called meeting
to be held at the Commonwealth Club, 30088
Dequindre, between 12 and 13 Mile Roads, on Sep-
tember 12, 1989 at 6:30 P.M. will give its findings and
recommend to the membership a fine of $2,076.00 for
your offense.
Your right of appeal is outlined under League Law
51 of the Laws of the Pattern Makers League of North
America. A copy of the League Law Book was en-
closed with the July 5, 1989 letter.
Again, neither employee attended the September 12 member-
ship meeting, and by identical letters (with exception of fine
amounts) dated September 14, 1989, the executive committee
informed them:8
In our letter dated August 10, 1989, you were in-
formed that the charges and fine against you would be
submitted to the general membership at its meeting on
September 12, 1989. This was done as stated and the
membership approved the recommendation of the Exec-
utive Committee.
Your fine of $2,076.00 is now due and payable to
this office no later than October 16, 1989.
Your right of appeal is outlined under League Law
5 of the Laws of the Pattern Makers League of North
America. A copy of the League Law book was en-
closed with the July 5, 1989 letter which you received.
Should you have any questions concerning this mat-
ter, contact Business Manager, Robert Stevens or As-
sistant Business Manger, John Winterhalter at the
Union Office at 939–6490.
With respect to the conduct of intraunion proceedings at
which the charges against Kurkowski, Russell, and others
charged with working behind a picket line were considered,
Winterhalter testified that various members on the picket
lines charged persons who crossed to return to work with
violation of the League’s laws to initiate the proceedings.
Thereafter, Winterhalter testified he, at the request of the ex-
ecutive committee, investigated the charges by determining
whether the person accused of crossing was a member at the
time, and, if so, he spoke with the members who had
claimed they saw a given member cross the picket line at
given times. After concluding his investigation, he rec-
ommended to the executive committee that they proceed or
refrain from proceeding on any given charge. He indicated
further that Respondent schedule hearings on charges in such
a manner as to hear five cases on dates when the charges
were to be considered. Winterhalter admits, and the record
reflects, that the eyewitnesses who allegedly observed dif-
ferent members cross the line to return to work did not ap-
pear before the executive committee to give testimony. In-
stead, Winterhalter simply appeared before the executive
committee and related to them what others had told him
about the actions of the members who had been charged. In
event the actual witness(es) had recorded their observations,
Winterhalter claimed he placed that evidence before the ex-
ecutive committee.
Turning to the proceedings involving Kurkowski and Rus-
sell, Winterhalter testified he instructed Wolverine’s shop
captain, Victor Tamala, to make a list of anyone who crossed
the picket line, to note when they crossed, and to cause
members who witnessed the crossing to sign any notes which
were prepared. He claimed that Tamala and member Terry
Saunders charged Kurkowski and Russell with crossing the
picket line at 7 a.m. on April 17, and that they provided him
with two pages of notes placed in the record as General
Counsel’s Exhibit 18, which noted, inter alia, that Russell
and Kurkowski were ‘‘in . . . in building full day’’ on April
17.9
Winterhalter testified that on the date the executive com-
mittee convened to hear the charges against Kurkowski and
Russell, he informed them Russell’s resignation was received
in the mail on April 17, but no resignation had been received
from Kurkowski. He further indicated that he informed the
executive committee that he had discussed the charges with
Tamala and Saunders and they had informed him Kurkowski
and Russell had crossed the line to return to work at 7 a.m.
on April 17. Additionally, he claims he gave the executive
committee the notes Tamala had prepared. As noted, supra,
after hearing Winterhalter’s remarks, the executive committee
decided to recommend to the membership that Kurkowski
and Russell be fined for crossing the line to return to work.
With respect to the amount of fine, Winterhalter indicated
the executive committee decided to fine all who were found
to be guilty of crossing the line to work to work 150 times
their normal dues.
It is undisputed that Kurkowski and Russell took no part
in the intraunion proceedings, and that they did not appeal
the decision to impose fines on them.
2. Daniel Corey
Corey was employed at Wolverine for 3 years. He was
employed elsewhere at the time of the hearing.
The employee testified that he observed the picket line for
about 2 weeks before deciding to return to work. Corey testi-
fied that he discussed his intention to resign his union mem-
bership and return to work with Chase, Wolverine’s presi-
dent, and the latter told him the Company would mail his
resignation registered mail and he should not return to work
until the receipt came back. The employee claims he exe-
cuted a resignation of membership form on March 26 or 27,
and that the Company mailed it for him. He testified Chase
told him several days later that he had received the slip from
the registered letter, and he could return to work the follow-
937PATTERN MAKERS (MICHIGAN MODEL MFRS.)
10 See G.C. Exh. 8.
11 See G.C. Exh. 9.
12 See G.C. Exh. 4. The remainder of the body of the letter is
identical to those which charged Kurkowski, Russell, and Corey with
the same alleged violations.
13 See R. Exh. 3.
14 See R. Exh. 4.
15 While Houle appeared to give testimony, no attempt was made
by Respondent to cause him to corroborate Winterhalter’s claim.
16 See G.C. Exh. 17. It is obvious that someone wrote over the
‘‘3–26–89’’ line in such a manner as to cause the notation to read
‘‘3–27–89.’’
17 See G.C. Exh. 20.
ing Monday, April 1. Corey identified the resignation form
placed in the record as General Counsel’s Exhibit 7 as being
the type of form he completed on March 26 or 27. Counsel
for the General Counsel placed in evidence as General Coun-
sel’s Exhibit 11, a domestic return receipt which reveals that
Union Secretary Bonafacio signed for a certified article on
March 28, 1989. While the card notes an article number, it
makes no reference to Corey.
When he appeared as a witness, Chase testified he ob-
served Corey sign a resignation of membership form, and he
stated the practice was to have a salesman or a driver mail
such forms by certified mail. He testified that no documents
other than resignations were sent certified during the strike,
and that he was 99-percent sure that he told Corey his receipt
was back and he could come back to work.
Corey, like Kurkowski and Russell received a letter dated
July 5, which informed him he was being charged with vio-
lation of League law 49, clause 5. The body of the letter is
identical to those sent Kurkowski and Russell set forth,
supra.10 Corey chose not to respond to the charges, and by
letter dated July 20, the Respondent’s executive committee
informed him they intended to recommend to the member-
ship on August 8 that he be fined $3954.11 He subsequently
received a letter dated August 10 in which the executive
committee indicated the fine was payable, and that he could
appeal by following the procedure outlined in the League
law book, which had been sent him with the July 5 letter.
Winterhalter’s description of the intraunion proceedings in-
volving Corey was quite abbreviated. He claimed that the
notes allegedly prepared by Tamala, previously referred to
and placed in the record as General Counsel’s Exhibit 18,
served as the basis for the executive committee’s decision to
fine Corey for crossing the picket line while still a member
and returning to work. The document, which appears to have
been prepared at a single time, rather than on dates extending
from March 25 to April 17, purports to indicate that Corey
(and others) were ‘‘in Building Full Day’’ on Tuesday,
March 28. Winterhalter indicated he was the only person to
testify against Corey before the executive committee and that
he supported the charge against him by producing General
Counsel’s Exhibit 18.
Corey took no part in the intraunion proceedings against
him and he has not appealed the decision to fine him.
3. Dennis Smith
Smith is employed by Rite. He testified that he observed
the Union’s picket line for the first 3 weeks of the strike. On
March 30, he discussed returning to work with Jim Flanagan,
Rite’s president, and signed a resignation of membership let-
ter. He claimed he personally mailed the letter to the Union
by certified mail the same day. The return receipt he subse-
quently received, which was placed in evidence as General
Counsel’s Exhibit 3, reveals the resignation was delivered to
the Union on April 3.
Smith returned to work at Rite at 7 a.m. on April 3. He
stated no pickets were present at Rite when he went to work
that day, but pickets were present when he left work that
evening.
By letter dated September 6, 1989, Smith was charged by
the Union’s executive committee with violation of League
law 49, clause 5, and he was required to attend an executive
committee meeting on September 19 at 5:30 p.m. at the
Union’s office.12 Smith did not attend the meeting, and, by
letter dated September 27, he was informed the executive
committee had found him guilty of violation of League Law
49, Clause 5; that it would recommend to the membership
on October 10 that he be fined $4989; and that his right to
appeal was outlined in League Law 51 which was set forth
in a copy of the League law book which accompanied the
letter.13 Subsequently, by letter dated October 12, the execu-
tive committee informed Smith the membership had ap-
proved its recommendation, the fine was then due and pay-
able, and that he could appeal under League Law 5. A sec-
ond copy of the League Law Book was enclosed with the
letter.14 Smith did not appeal the imposition of the fine.
The record evidence relating to Respondent’s decision to
impose a fine on Smith for allegedly crossing the picket line
to return to work at Rite, strongly suggests that Respondent’s
executive committee fined Smith for crossing the picket line
and returning to work on or near March 20. During direct
examination, Winterhalter indicated that, as with the other
fine proceedings, he was the sole person to give information
to the executive committee when the charges against Smith
were treated. He claimed that Arnet Dorton, Rite’s shop cap-
tain, Tom Houle, Michael Bagnowski, and Chris Wilson
were present on the picket line on April 3, and that Houle
told him he saw Smith cross the line to return to work that
date, and he reported his conversation with Houle to the ex-
ecutive committee.15 During cross-examination, Winterhalter
produced notes in his possession, at counsel for the General
Counsel’s request, and he was questioned about a document
placed in evidence as General Counsel’s Exhibit 17, which
purports to be a charge filed by Christopher Wilson which
accused Smith of crossing the picket line on ‘‘3–20–90’’ and
‘‘3–26–89.’’16 Winterhalter persisted during cross-examina-
tion in contending information provided by Houle, rather that
Wilson, served as the basis for the decision to fine Smith.
He claimed he felt Wilson’s information was unreliable and
it was therefore not used. Union counsel’s position letter
dated December 10, 1989, which was sent to the Region,
states the following with respect to Smith:17
To date, the Union has received no resignation letter
from Dennis Smith. In fact, Mr. Smith has never re-
signed from the Union. Nonetheless, he returned to
work sometime in March, 1989, shortly after the strike
began.
Mr. Smith never responded to Executive Committee
notifications regarding the charges and never appeared
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
at this trial. Mr. Smith was found in violation of the
Union Constitution and fined for his activities. Mr.
Smith has never challenged this finding and has not ap-
pealed this decision.
Discussions and Analysis
Under the provisions of the Act, a union has the right to
regulate its own internal affairs by enforcing properly adopt-
ed rules which reflect a legitimate union interest, impair no
statutory labor policy, and are reasonably enforced against
union members who are free to leave the Union and escape
the rules. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175
(1967), and Scofield v. NLRB, 394 U.S. 423 (1969). In Sco-
field, the Supreme Court stated at 78:
[W]e conclude that the Board was warranted in deter-
mining that when the union discipline does not interfere
with the employee-employer relationship or otherwise
violate a policy of the National Labor Relations Act,
the Congress did not authorize it ‘‘to evaluate the fair-
ness of union discipline meted out to protect a legiti-
mate union interest’’ [citations omitted].
It is well settled that a union cannot lawfully discipline an
employee-member for conduct he engaged in after he effec-
tively resigned his full union membership. Pattern Makers v.
NLRB, 473 U.S. 95 (1985). When determining whether res-
ignations are effective for the purpose of escaping union
rules, the Board follows an effective receipt rule rather than
a deposit rule like that used in contract law for acceptances.
Teamsters Local 538 (Passavant Health Center), 275 NLRB
730 (1985); Teamsters Local 610 (Browning-Ferris), 264
NLRB 886, 899–900 (1982). In the case of resignations de-
posited in the regular mails, the Board assumes, in the ab-
sence of contrary evidence, that the resignation is received
the day after mailing and at an hour before the employee
crossed the picket line. Hendricks-Miller Typographic Co.,
240 NLRB 1082, 1088 (1979).
Here, the facts which I credit reveal that Kurkowski and
Russell executed resignations on April 15, and Russell
mailed the resignations in one envelope the same day. While
Winterhalter admits the Union received Russell’s resignation
in the mail on April 17, he denies he received two resigna-
tions in a single envelope, and he denies he received a res-
ignation from Kurkowski. As indicated, supra, I do not credit
such denials; rather, I credit Stevens’ assertion that
Winterhalter informed him he he did receive two resignations
in one envelope, and he destroyed Kurkowski’s resignation.
Apart from the envelope matter and the receipt of the
Kurkowski resignation, however, Postal Supervisor George
credibly testified the Union could not have received the
Kurkowski and Russell resignations until after 9:30 a.m. As
both employees admittedly crossed the picket line to return
to work at 7 a.m. on April 17, they exposed themselves to
lawful union discipline. The General Counsel contends I
should nevertheless find that the fines imposed on the named
individuals were unlawful because: the Union failed to in-
form its members of the consequences of violating its con-
stitution and bylaws; it failed to inform them of the specifics
of the charges; it did not inform them of the potential fine;
and it did not tell them how the fine was determined. In my
view, General Counsel’s alternative argument touches on in-
ternal union matters which do not relate to the employee-em-
ployer relationship. I find them to be without merit. Such
matters as well as the reasonableness of the amount of the
fines imposed on Kurkowski and Russell are matters which
are litigable in state court rather than in Board proceedings.
Accordingly, I find the General Counsel failed to prove that
the Union fined Kurkowski and Russell in violation of Sec-
tion 8(b)(1)(A) of the Act.
Smith’s situation is similar to that of Kurkowski and Rus-
sell. He signed and mailed his resignation on March 30, and
it was received by the Union after 9:30 a.m. on April 3. The
employee credibly testified that when he crossed the picket
line at 7 a.m. on April 3, he saw no pickets, but pickets were
present when he left work at quitting time. Having placed a
return receipt in evidence which establishes that Smith’s res-
ignation was received by the Union on April 3, the General
Counsel contends in brief that I should apply the presump-
tion that Smith’s resignation was received by the Union the
day after it was mailed; that Smith could and should be able
to rely on the fact that his resignation should have been re-
ceived by Respondent on Friday prior to his returning to
work on Monday. The short answer to the latter contention
is that the Board follows a rule of effective receipt in res-
ignation of union membership cases, and the instant record
establishes the Union effectively received Smith’s resignation
after 9:30 a.m. on April 3. With respect to the sufficiency
of the evidence of violation of its laws which was considered
by the Union’s executive committee, I deem that to be an
internal union matter which may be reviewable by a state
court rather than the Board. Accordingly, I find the General
Counsel failed to prove that Respondent fined Smith in vio-
lation of Section 8(b)(1)(A) of the Act.
Corey’s situation differs materially from that of the above-
named employees. He credibly testified he executed a res-
ignation on March 26 or 27, and that his employer mailed
the resignation by certified mail to the Union that day.
Chase, Wolverine’s president, credibly testified he saw Corey
execute the resignation, and the document would have been
mailed that day by a salesman or a driver. Moreover, Chase
testified he was 99-percent sure he later received a return re-
ceipt which he believed at the time to be the receipt for de-
livery of Corey’s resignation and he then told Corey he could
start work. While Winterhalter denied receiving a resignation
from Corey, I conclude it must be presumed that Corey’s
resignation was received by the Union on March 28. In addi-
tion to the fact that Board precedent warrants such a pre-
sumption, Respondent witness George’s testimony supports
such a presumption. Although Winterhalter claimed that
notes given him by Wolverine Picket Captain Tamala re-
vealed that Corey crossed the picket line on March 28, and
the executive committee relied on such notes when deciding
to fine Corey, I note that Tamala was not called as a witness
to rebut Corey’s claim that he did not cross the picket line
to return to work until April 1—5 days after Corey’s resigna-
tion was mailed. In the circumstances, I find the notes, which
were obviously prepared at one sitting rather than on various
dates, to be a self-serving document which is entitled to no
evidentiary value. I find that credible record evidence reveals
the Respondent imposed a fine on Corey for postresignation
conduct, and through such action it violated Section
8(b)(1)(A) of the Act as alleged.
939PATTERN MAKERS (MICHIGAN MODEL MFRS.)
18 The record reveals one grievance involving vacation pay and a
second involving a vacation pay fine were filed and processed at
unstated times. Grapentin indicated the payroll manger in the office
handled complaints involving money. 19 See G.C. Exh. 5.
C. The Martin Grapentin Issues
Martin Grapentin has been employed by Rite in excess of
17 years. For a period of about 3 years, he was Rite’s plant
superintendent. He relinquished that position and went back
on the clock in April or May 1990.
While he was Rite’s plant superintendent, Grapentin, to-
gether with the owner, Jim Flanagan, provided immediate su-
pervision of the Company’s 15–20 employees. He indicated
he was involved in hiring, firing, layoffs, and the day-to-day
supervision of the Company’s operations. With respect to the
hire of employees, Grapentin testified that Rite ran news-
paper ads for employees during the strike; that he had to
interview a lot of people; and that they hired some appli-
cants. With respect to the separation of employees, Grapentin
testified he laid off a number of employees with the intention
of recalling them when business picked up, and he fired two
employees. The first was Billy Forest who was fired shortly
after he became plant superintendent and the last was an em-
ployee who was fired after the strike. In addition to hiring,
firing, and laying off employees, Grapentin indicated he ap-
proved requests for time off, assigned employees to work
overtime, and furnished employees with blueprints when as-
signing work to them. It is clear, and I find, that Martin
Grapentin was a supervisor within the meaning of Section
2(11) of the Act.
Grapentin credibly testified that during his tenure as plant
superintendent no grievances were filed by employees which
involved the shop operations.18 He indicated, however, that
the shop captain brought employee complaints about job as-
signments, overtime assignments, vacation time scheduling,
and safety matters to him from time to time and he attempted
to resolve such complaints. He recalled that on several occa-
sions the shop captain complained to him that nonunit em-
ployees were performing bargaining unit work, and he rem-
edied the situation by causing the employees to cease per-
forming such work. While Grapentin admitted he did not ac-
tually conduct bargaining for Rite, he sat in on one negotia-
tion meeting after the strike, but he just listened and said
nothing. Finally, he indicated he consulted with Flanagan
concerning important problems, but stated he was frequently
the sole individual in charge of the shop during Flanagan’s
absence.
Respondent produced Winterhalter and Arnet Dorton,
Rite’s shop captain, as witnesses to rebut the General Coun-
sel’s claim that Grapentin was a supervisor and a grievance
adjuster. Winterhalter testified he attended two negotiation
sessions at Rite after the strike and that Grapentin did not
sit in on either session. He failed to indicate whether other
negotiations which he did not attend were conducted by Re-
spondent and Rite. Dorton claimed when he appeared to give
testimony that Jim Flanagan was the man who made all the
shop related decisions at Rite; that Grapentin was merely a
‘‘leader.’’ He claimed during direct examination that he dealt
with Flanagan rather than Grapentin if there were any prob-
lems in the shop concerning people working there, and that
he went to Grapentin with only normal shop problems, like
if something needed fixed or repaired. During cross-examina-
tion, Dorton conceded he complained to Grapentin several
times that a sweeper was performing bargaining unit work,
and a similar complaint would have been brought to
Grapentin’s attention if a crib attendant was performing bar-
gaining unit work. While he stated he did not recall dis-
cussing any overtime problems with Grapentin, he testified
he would go to Grapentin if there were safety problems in
the shop.
In sum, I conclude Dorton was not entirely candid when
he described Grapentin’s status or the extent of the super-
visor’s involvement in grievance adjustment during his ten-
ure as plant superintendent. Grapentin’s testimony, which I
deem to be more credible, more fully describes the extent to
which he handled employee complaints, and that testimony
causes me to conclude that he regularly heard and adjusted
minor employee problems before they were voiced in the
form of formal grievances.
Grapentin testified that due to the fact that he occupied the
plant superintendent position at Rite, and was no longer per-
forming bargaining unit work, he telephoned Winterhalter
during the fall of 1988 to inquire about getting out of the
Union. During the conversation, honorable withdrawal was
discussed, and Grapentin testified he understood Winterhalter
would send him the appropriate form. When he had received
nothing, he again telephoned Winterhalter in February before
the strike began. At that time, Winterhalter apparently in-
formed him he needed to submit a letter signed by both him-
self and his employer which verified his supervisory status
and indicated his desire to honorably withdraw from the
Union. During the conversation, Winterhalter told Grapentin
he should experience no difficulty obtaining honorable with-
drawal if he performed no bargaining unit work. Con-
sequently, on March 13, 1989, Grapentin sent the Union’s
executive committee a letter signed by himself and Flanagan,
Rite’s president. The body of the letter states:19
During the past three (3) years, I have been advanc-
ing my position at Rite Industrial Models, until now I
am holding the title of plant superintendent. Mr. Flana-
gan and I have discussed the proper time to severe my
relationship with the Union-because of the obvious con-
flict between being a loyal union supporter and a loyal
Company supporter. The strike now in progress has ag-
gravated our position, and I feel I must now make the
choice that will best enhance my future. I submit this
letter as a request to make an honorable withdrawal
from the Union. Since I’ve always been a loyal union
supporter, I want to part with good feelings among us
all. As a member of Rite’s management, I hope we can
work together in the future to the benefit of all, and
your best wishes would be sincerely appreciated.
Grapentin’s request for honorable withdrawal was tabled by
the executive committee on March 21 and it was denied by
that body on May 30.
By letter dated September 6, 1989, Grapentin was in-
formed he had been charged with violation of League law
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Presumably the letter, which was not placed in evidence, set a
hearing date and was substantially identical to the charge letters sent
other employee-members.
21 See G.C. Exh. 6.
22 G.C. Exh. 20.
23 Florida Power Co. v. Electrical Workers IBEW Local 641, 417
U.S. 790 (1974).
24 American Broadcasting Cos. v. Writers Guild, 437 U.S. 411
(1978).
49, clause 5.20 He did not respond to the letter and, by letter
dated September 27, he was informed the executive com-
mittee had found him guilty of crossing a picket line and
going to work for an employer, and it would recommend to
the membership on October 10 that he be fined $6174.21
Grapentin did not attend the October 10 meeting and he has
not appealed the imposition of the fine on him. He testified
he was notified at some point that a suit had been instituted
against him, but he was later advised it had been dropped
with prejudice.
In its December 10, 1989 position letter which was sent
to Regional Director Gottfried, Respondent stated, inter
alia,22 ‘‘During the strike, Martin Grapentin, who worked as
a supervisor before the strike, performed substantial bar-
gaining unit work for Rite Industrial.’’ Winterhalter, who
furnished the Union’s executive committee with the informa-
tion which caused it to find him guilty of the charges levied
against him, indicated during his testimony that neither he
nor any of the members on the picket line actually observed
Grapentin perform bargaining unit work during the strike. In-
stead, Winterhalter testified that during his visits to the pick-
et line at Rite during the strike, he observed Grapentin come
to the refreshment truck wearing an apron, dirty clothes, and
dirty shoes. Additionally, he indicated persons on the picket
line reported they had seen Grapentin wearing dirty clothes
and a dust mask during the strike. While Respondent witness
Tom Houle testified he observed Grapentin standing near a
mold with a file in his hand during the strike, Winterhalter
testified he could not recall any observations Houle made
about Grapentin when they conversed. Winterhalter admitted
that neither he nor any other member actually observed
Grapentin perform bargaining unit work during the strike.
Moreover, he admitted the Rite shop is dusty and that
Grapentin, who wore an apron before the strike, could have
gotten dusty and dirty simply because he spent time in the
shop.
Grapentin denied that he performed any bargaining unit
work during the strike.
Discussion and Conclusions
The General Counsel contends Respondent could not law-
fully fine Grapentin for working during the strike because he
performed no bargaining unit work during the strike, and, in
his capacity as a Section 2(11) supervisor, he adjusted griev-
ances in the course and conduct of his duties. In the alter-
native, the General Counsel contends that by orally dis-
cussing ‘‘honorable withdrawal’’ with Winterhalter before
the strike, Grapentin resigned his membership in the Union.
The record clearly reveals the Union’s executive committee
must consider honorable withdrawal requests before with-
drawal is permitted, as persons who are permitted to honor-
ably withdraw are permitted to reinstate their membership
upon payment of $5 rather than a new initiation fee. I find
a request for honorable withdrawal does not constitute a res-
ignation of membership.
Respondent contends it did not violate Section 8(b)(1)(B)
of the Act when it imposed a fine on Grapentin because the
record fails to reveal he adjusted grievances within the mean-
ing of the Act, and, in any event, the record reveals he per-
formed more than a minimal amount of bargaining unit work
during the strike.
While the record reveals that Grapentin has not partici-
pated in the resolution of grievances filed pursuant to a col-
lective-bargaining contract, it clearly reveals that he, in co-
operation with Rite’s shop captain, sought at all material
times to resolve employee complaints about job assignments,
overtime assignments, vacation scheduling, safety matters,
and the performance of bargaining unit work by such em-
ployees as sweepers and crib attendants. Additionally, the
record reveals that Grapentin is in sole charge of the Rite
shop during owner Flanagan’s absences, and that he regularly
makes decisions to hire, fire, and lay off employees. Upon
the facts enumerated, I find that Martin Grapentin has been,
at all times material, a grievance adjuster within the meaning
of Section 8(b)(1)(B) of the Act. Operating Engineers Local
101 (St. Louis Bridge), 297 NLRB 485 (1989); Sheet Metal
Workers Local 68 (De Moss Co.), 298 NLRB 1000 (1990).
Although the Supreme Court held in Florida Power23 that
a union does not violate Section 8(b)(1)(B) of the Act when
it disciplines a supervisor for performing rank-and-file bar-
gaining unit work, it held, in American Broadcasting Cos.
(ABC),24 that a union violated Section 8(b)(1)(B) of the Act
by disciplining supervisors who crossed a picket line during
a strike to perform only their regular supervisory duties, in-
cluding the adjustment of grievances. Here, Grapentin
credibly testified he performed no bargaining unit work
while he was Rite’s plant superintendent, and that he per-
formed only his regular supervisory duties during the course
of the strike. Winterhalter’s claim that he observed the super-
visor while he was wearing an apron and dirty clothes fails
to establish that Grapentin was engaged in the performance
of bargaining unit work. In the same vein, union witness
Houle’s claim that he observed Grapentin holding a file
while he was near a mold fails to establish that Grapentin
was then performing bargaining unit work. Indeed, while
Winterhalter and Houle made the observations described
above, both admitted that they could not truthfully say that
Grapentin performed any bargaining unit work during the
strike. In the circumstances described, I credit fully
Grapentin’s claim that he performed only his regular plant
superintendent duties during the strike.
Noting the record reveals Respondent was seeking to ne-
gotiate a renewal contract with Rite at the time it imposed
a fine on Grapentin for crossing its picket line to perform his
normal supervisory duties, including the adjustment of griev-
ances, I find its imposition of discipline on Grapentin will
adversely affect the employer-representative’s performance of
grievance-adjusting duties. NLRB v. Electrical Workers
IBEW Local 340 (Royal Electric), 481 U.S. 573, 589–590
(1987). Accordingly, I find, as alleged, that by imposing dis-
cipline in the form of a fine which exceeded $6000 on
Grapentin, Respondent violated Section 8(b)(1)(B) of the Act
941PATTERN MAKERS (MICHIGAN MODEL MFRS.)
25 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
as alleged. American Broadcasting Cos. (ABC), supra; St.
Louis Bridge Co., supra.
D. The March 20, 1989 Letter
The complaint alleges that by sending a letter dated March
20, 1989, which is attached to the complaint as Exhibit A,
to employees, Respondent restrained and coerced employees
in violation of Section 8(b)(1)(A) of the Act. Respondent ad-
mitted in its February 21, 1990 Answer ‘‘that it sent Exhibit
A to its members.’’
As revealed, supra, in the portion of this decision entitled
‘‘Background,’’ Manufacturers Association distributed a
pamphlet entitled ‘‘Employee Rights’’ to employees of its
employer members on March 17. The pamphlet, inter alia,
informed employees they could resign their membership in
the Union and thereafter cross the picket line to return to
work during the strike, and the Union would be unable to
lawfully fine them for engaging in such activities. Subse-
quently, by letter to employee-members dated March 20, Re-
spondent informed them:
IMPORTANT
In response to the Employers letter #10 dated, March
17, 1989, I will be brief and to the point.
The companies are not aware of our League Laws or
our internal By-Laws.
The facts are that we have won in court and col-
lected a heavy fine from a former member who chose
to resign his membership.
Stand united and don’t fall victim to the employers
bullshit that flows through the mail!
The letter was signed by Joseph Laughunn, Respondent’s
business manager through April 1989.
The General Counsel contends the letter under discussion
constitutes a threat to fine employees for exercising their
Section 7 right to resign their union membership. Respond-
ent, on the other hand, argues that the 1989 strike was like
an election campaign ‘‘because it involved a battle for the
employees’ hearts and minds,’’ and, consequently, the letter
should be treated like union campaign literature. I agree with
the General Counsel and conclude Respondent’s contention
is without merit.
Since the Supreme Court issued its decision in Pattern
Makers v. NLRB, 473 U.S. 95 (1985), the Board has uni-
formly held that union members have the right to elect to re-
sign their membership at any time. While a union can law-
fully discipline members for preresignation conduct, employ-
ees cannot be lawfully disciplined by a union for engaging
in postresignation conduct. As observed by the General
Counsel, the instant Respondent failed when promulgating
the March 20 letter under discussion to limit its threat to dis-
cipline members who chose to resign and cross the picket
line for only preresignation conduct. Instead, the letter clear-
ly constitutes a threat to fine former members who chose to
resign their membership. When reading the Union’s letter,
employees could logically conclude Respondent was stating
in its letter that it could impose heavy fines upon them if
they chose to resign their membership in the Union and cross
its picket line to return to work. Accordingly, I find, as al-
leged, that by sending its March 20 letter to employee-mem-
bers, Respondent sought to restrain and coerce them in the
exercise of their Section 7 rights, and it thereby violated Sec-
tion 8(b)(1)(A) of the Act as alleged.
CONCLUSIONS OF LAW
1. Wolverine and Rite are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By imposing a court collectible fine upon employee
Daniel Corey for crossing its picket line and returning to
work for his employer after he had resigned his membership
in the Union, Respondent violated Section 8(b)(1)(A) of the
Act.
4. By restraining coercing Rite Industrial Model, Inc. in
the selection of its representation for the purposes of collec-
tive bargaining or the adjustment of grievances by fining
Martin Grapentin for crossing a picket line to perform super-
visory duties or grievance adjustment duties, Respondent vio-
lated Section 8(b)(1)(B) of the Act.
5. By threatening through a letter distributed to employee-
members on March 20, 1989, to impose heavy fines upon
members who chose to resign their membership in the
Union, Respondent violated Section 8(b)(1)(A) of the Act.
6. The unfair labor practices found above are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has been engaged in unfair
labor practices, it is recommended that Respondent be or-
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found Respondent unlawfully imposed fines on
Daniel Corey and Martin Grapentin, it is recommended it be
required to rescind such fines, reimbursing such individuals
for any sums they may have paid for the fines levied against
them, with interest computed in the manner set forth in New
Horizons for the Retarded, 283 NLRB 1173 (1987), and that
it be required to expunge all records documenting the dis-
ciplinary action taken against them, and notify them in writ-
ing that this has been done.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended25
ORDER
The Respondent, Pattern and Model Makers Association of
Warren and Vicinity, Pattern Makers League of North Amer-
ica, AFL–CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Imposing court collectible fines upon Daniel Corey, or
any other employee, for crossing a picket line and returning
to work for his employer after he has resigned his member-
ship in the Union.
942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
26 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
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.’’
(b) Restraining and coercing Rite Industrial Model, Inc. in
the selection of its representation for the purposes of collec-
tive bargaining or the adjustment of grievances by imposing
fines, or otherwise disciplining Martin Grapentin, or any
other supervisor acting in like capacity, for crossing a picket
line to perform supervisory functions, including adjustment
of grievances.
(c) Threatening by letters to employee-members to impose
heavy fines on members who chose to resign their member-
ship in the Union.
(d) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
(e) In any like or related manner restraining or coercing
Rite Industrial Model, Inc., or any other employer engaged
in commerce in its selection of representatives for the pur-
pose of collective bargaining or the adjustment of grievances.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Rescind the fines imposed on Daniel Corey and Martin
Grapentin, reimburse said individuals for any sums they may
have paid for the fines levied against them in the manner set
forth in the remedy section of this decision, and remove all
records documenting the disciplinary action taken against the
named individuals and notify them in writing that this has
been done.
(b) Post at its facility in Warren, Michigan, copies of the
attached notice marked ‘‘Appendix.’’26 Copies of the notice,
on forms provided by the Regional Director for Region 7,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.