San Diego County District Council of Carpenters

National Labor Relations Board - Board Decisions

Jun 28, 1979

243 N.L.R.B. 147 (N.L.R.B. 1979)

SAN DIEGO C(OUNTY DISTRICT COUNCIl. OF ('ARPENII4RS
San Diego County District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Campbell Industries) and
Sverre Seim.
San Diego County District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO; and Shipwrights, Boatbuilders
and Helpers, Carpenters Local Union No. 1300 and
Thomas Ellison. Cases 21 CB-5718 and 21-CB
5751
June 28. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On March 8. 1977, Administrative Law Judge
James M. Kennedy issued the attached Decision in
this proceeding. Thereafter, Respondents and the
General Counsel filed exceptions and supporting
briefs and the General Counsel filed a brief answering
Respondent's exceptions.
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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge found that Respon-
dents violated Section 8(b)(l)(A) by fining employees
who had crossed a picket line before their resigna-
tions, to the extent that the fines related to crossings
made after the employees had resigned from Respon-
dent Local Union. As fully set forth below, we do not
agree with the Administrative Law Judge's appor-
tionment of the fines to the preresignation and post-
resignation picket-line crossings.
The Administrative Law Judge also found that Re-
spondent Local violated Section 8(b)(2) by threaten-
ing to cause the discharge of certain employees for
nonpayment of dues through the use of a union-secu-
rity clause which was not in effect at the time the
alleged dues obligation arose. We agree that the
threat violated Section 8(b)(2).
Finally, the Administrative Law Judge found that
Respondent Local did not violate Section 8(b)(1)(A)
by causing dues to be withheld, pursuant to dues-
checkoff authorizations, for the period between col-
lective-bargaining contracts. We disagree and find
that by this action Respondent Local did violate Sec-
tion 8(b)( I)(A), as set ftrth below.
The facts of record are not in dispute. The Employ-
ers involved herein. San Diego Marine Construction
Corp. and Campbell Industries. are engaged in ship-
building and were parties to a multiemployer-multi-
union collective-bargaining agreement which expired
September 30. 1975. Respondent Local was one of the
unions who was party to the contract.
After the collective-bargaining agreement expired a
strike ensued. commencing October 1,. 1975, and end-
ing February 13, 1976. A new agreement was reached
effective February 13. 1976. and running through
February 12, 1979. Both the old and the new con-
tracts contained union-security provisions. Only the
new contract, however, contained a dues-checkofl'
provision, although both San Diego Marine and
Campbell voluntarily honored dues-checkoff authori-
zations during the period of the old contract. The
checkoffs provided for the monthly deduction of dues
as well as for accelerated payment of unpaid dues.
They also provided fior a 15-day revocation period
annually or 15 days before the contract's expiration
upon written notice to both the Employer and Re-
spondent Local.
During the course of the strike, employees (of both
Campbell and San Diego Marine) who were members
of Respondent Local attempted to resign their union
membership and return to work. Most crossed the
picket line after sending a resignation letter but be-
fore its receipt by Respondent Local. Some crossed
the picket line on the day the letters were received by
Respondent Local.'
The International constitution governing the ac-
tions of both Respondent Local and Respondent Dis-
trict Council of Carpenters provides that a member
may resign upon written notice and approval of a
majority of those present at a regular meeting. How-
ever, the constitution also provides that consideration
of a resignation will not be undertaken if it is for the
purpose of violating a trade rule-one of which is
working behind a duly authorized picket line of a
subordinate of the International. The constitution
further provides for fines, and Respondent District
Council's bylaws provide for a fine of $300 for a
member crossing such a picket line.
As a consequence of the picket-line crossing, the
tendered resignations of those individuals who had
crossed were rejected, and each was fined $300.
The Administrative Law Judge concluded that em-
ployees may resign at will from a union as long as
they continue to meet the financial obligations owed
'The Administrative Law Judge inadvertently iound that the resignation
letter of Richard Beckwith was received by the Local ti nion on D)ecember 9.
1975. The letter was received on December 8, 1975
243 NLRB No. 17
147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to it as imposed by a collective-bargaining agreement.
He further concluded that the employees herein had
therefore effectively resigned from Respondent Local
when their resignation letters were received. As stated
above, he also found that the $300 fines, to the extent
they represented a fine for the time period the em-
ployees were no longer members, violated Section
8(b)(1)(A). To this extent the Administrative Law
Judge therefore ordered reimbursement on a pro rata
basis to those employees who had already paid the
fine.
We agree with the Administrative Law Judge that
the resignations herein were effective when they were
received by Respondent Local. Employees are not
bound to observe a strike which commences while
they are union members and are entitled to return to
work, protected by Section 7 of the Act, if they first
resign from the Union. 2 Where the resignation proce-
dure is unduly restrictive, employees may effectively
resign upon notification to the Union. Here it is clear
that the resignation procedure which requires mem-
bership approval without setting standards for such
approval is unduly restrictive and, therefore, presents
no bar to resignation at any time.3
While the employees thus had a right to resign their
membership by simply notifying Respondent Local,
and could not be fined for crossing a picket line after
their resignation, we note that in all cases the employ-
ees crossed the picket line either before the day, or on
the same day, that Respondent Local received their
resignations. The Administrative Law Judge recog-
nized this and therefore ordered the pro rata reim-
bursement formula adverted to above.
We disagree with the Administrative Law Judge's
formula under the circumstances of this case. Respon-
dent District Council's bylaws permitted a fine of up
to $300, and this fine was imposed upon all who
crossed the picket line, regardless of the number of
crossings. It is thus clear, as found by the Administra-
tive Law Judge, that the multiple crossings were re-
garded as a single crossing. Thus the fine can be said
to have been imposed for the initial crossing (prior to
resignation) just as easily as it can be said to apply to
postresignation crossings. In these circumstances, we
can see no basis for finding part of the fine to have
been unlawfully imposed. We are also of course un-
able to inquire into the reasonableness of a union fine
since that is an internal union matter protected by the
2 Booster Lodge No. 405, International Association of Machinists & Aero-
space Workers, AFL-CIO Boeing Co.] v. N.L.R.B., 412 U.S. 84 (1973);
N.LR.B. v. Granite State Joint Board, Textile Workers Union of America,
Local 1029, AFL-CIO [International Paper Box Machine Co.], 409 U.S. 213
(1972).
1The Administrative Law Judge's view that an employee "may, at will,
join or resign from a union so long as he meets his financial obligations" is
not a correct statement of the law.
proviso to Section 8(b)(I)(A) of the Act.4 We shall
therefore dismiss this allegation of the complaint.5
On April 1, 1976, the union wrote to San Diego
Marine stating that, since certain employees were not
in compliance with the union-security clause of the
new contract because they owed back dues, they
would not be able to work after April 5 without clear-
ance from the Union. The money involved, which
was, in fact, thereafter collected, was money for a
period of time which included the strike when no col-
lective-bargaining agreement was in effect.
The Administrative Law Judge found that, to the
extent the attempt to use the new union-security
clause was for the purpose of collecting monies appli-
cable to the precontract period, such attempt violated
Section 8(b)(2) of the Act. The Administrative Law
Judge ordered that the money received as a result of
the unlawful threat for the period not owed by reim-
bursed, but he inadvertently neglected to order that
Respondent Local Union cease and desist from this
activity. As stated above, we agree with the finding
that the attempt was unlawful, and we shall add the
appropriate cease-and-desist language to the Order.
The Administrative Law Judge also found that the
successful attempt to collect dues which accrued dur-
ing the period of the strike from employees who had
resigned during the strike did not violate Section
8(b)(l)(A). 6 He reasoned that, while the employees
had effectively resigned from the Union, they had
never canceled their outstanding checkoff authoriza-
tion. He further reasoned that the checkoff authoriza-
tions functioned as independent wage assignments
which did not expire by operation of law with the
resignations or in the absence of a union-security
clause.7 The Administrative Law Judge concluded
that it was reasonable to insist upon compliance with
the terms of the agreed-upon checkoff cancellation
procedure--i.e.. written notice to both the Union and
San Diego Marine of intent to cancel with the notice
to be given during the 15-day period prior to the expi-
ration of the collective-bargaining agreement.8 As the
affected employees had not given this notice, the Ad-
ministrative Law Judge, as stated above, found no
4N.L. R.B. v. Boeing Co., et al., 412 U.S. 67 (1973).
For a discussion of fines imposed upon employees who cross picket lines
the same day that their resignation letter is received by the union, see Local
1012, United Electrical Radio & Machine Workers of America (UE) (General
Electric Company),. 187 NLRB 375 (1970); United Construction Workers, Lo-
cal 10, Christian Labor Association (Erhardt Construction Co. et a.), 187
NLRB 762 (1971).
6 The inadvertent reference in the Administrative Law Judge's Decision,
sec. IV, C, par. 14, to "Section 8(bX2)" is hereby corrected to read "Section
8(bX)( A)."
' There was, of course, no union-security clause in effect during the hiatus
penod between contracts.
8 Checkoff authorizations could also be revoked during an annual 15-day
period prior to each anniversary of the authorization's execution.
148
SAN DIEGO COUNTY DISTRICT COUN(CIL. OF CARPENTERS
violation in the collection of the dues for the hiatus
period.
Contrary to the Administrative Law Judge, we find
that in the circumstances of this case the continued
dues deductions for the hiatus period for those who
had resigned their union membership violated Section
8(b)(1)(A) of the Act. In this connection we note that
the dues-checkoff authorization itself states that it is
furnished "in consideration of the benefits received
and to be received by me as a result of my member-
ship in the Union .... " In light of the specific lan-
guage of the authorization we find that an effective
resignation from the Local Union also revoked the
checkoff authorization by operation of law.9 Accord-
ingly, we conclude that the dues collection for the
hiatus period violated Section 8(b)(1)(A). We shall
therefore order that Respondent cease and desist
from such activity and that it reimburse the affected
employees for dues collected during the hiatus period
after they had resigned.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Ship-
wrights, Boatbuilders and Helpers, Carpenters Local
Union No. 1300, San Diego, California, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening to cause the discharge of employ-
ees for nonpayment of dues through the use of union-
security clauses not in effect at the time the alleged
dues obligation arises.
(b) Causing dues to be withheld from employees
who have resigned their union membership for peri-
ods between collective-bargaining agreements.
(c) In any other manner restraining or coercing
employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
The language of the authorizations and the legal import of that language
could not be clearer. Hence, the dissent's effort to discount the significance of
the parties' understanding as reflected by the wording of the authorization is.
at best, unpersuasive. Thus, for example, our dissenting colleague is wrong in
suggesting "most-if not all-checkoffs are authorized in consideration of
the benefits the employees seek to gain from union membership," which
ignores the agency shop. See N. L R. B v. General Motor Corp.. 373 U.S. 734
(1963). Our colleague simply has confused union membership with union
representation, quite a different matter. Nor. our colleague's contrary view
notwithstanding, is there any inconsistency between our decision here and
our decision in Frito-Lay. Inc., 243 NLRB 137, issued today. Here, as re-
flected by the wording of the authorization, the parties agreed to checkoff on
the express understanding that union membership with its attendant benefits
furnished consideration therefore. No such wording appears in the authori-
zations in issue in Frito-Lay and no such agreement may be otherwise in-
ferred or found on the facts of that case.
(a) Reimburse or refund to the below-named em-
ployees the dues which were unlawfully exacted by
threat of discharge and which were for periods during
which dues were not owed, plus interest at 6 percent
per annum:
Richard Beckwith Pat Krause
Barry Gage William McAndrew
(b) Reimburse or refund to the below-named em-
ployees the dues unlawfully collected from them for
the period between collective-bargaining agreements
and after they had resigned, plus interest at 6 percent
per annum, to the extent such dues have not been
reimbursed in accordance with paragraph 2(a).
above:
Richard Beckwith Barry Gage
John Edwards Pat Krause
(c) Post at its offices and meeting halls in San Di-
ego, California, copies of the attached notice marked
"Appendix."' ° Copies of said notice, on forms pro-
vided by the Regional Director for Region 21, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Deliver to the Regional Director for Region 21
signed copies of said notice in sufficient number to be
posted by the employers involved herein, if willing.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the remainder of the
complaint be, and it hereby is, dismissed."
MEMBER MURPHY, dissenting in part:
This case involves the Carpenters Union's rules on
resignations from the Union during a strike. Here the
record shows that the employees who submitted resig-
nations worked behind the picket lines several times
before the Union received their resignations. They
also worked behind the lines for several months after-
wards. They were fined $300 each for working during
the strike. Under these circumstances I do not find
that the Union violated Section 8(b)( I)(A) of the Act
by levying such fines.
Also, contrary to the majority, I would adopt the
Administrative Law Judge's conclusion that the Lo-
0 In the event that 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
i As we have found no violations involving Respondent District Council.
we dismiss the complaint with regard to it.
149
DECISIONS Of NATIONAL. I.ABOR RELATIONS BOARD
cal did not violate Section 8(b)(l)(A) by causing dues
to be withheld, pursuant to the provisions of appli-
cable dues authorization, for a period between bar-
gaining agreements but after the affected employees
had resigned from that union. The employees in-
volved in this instance, though submitting effective
membership resignations, did not at any relevant time
specifically revoke their outstanding checkoff authori-
zations.' 2 There is no doubt that a membership resig-
nation does not automatically cancel checkoff autho-
rizations." But here the majority finds such automatic
revocations based on the employees' resignations. In
reaching this result my colleagues rely on language of
the authorizations stating that "in consideration of
the benefits received and to be received by me as a
result of my membership in the Union I . ..hereby
authorize . . ." the checkoff of dues. From this they
conclude that as the checkoff was a quid pro quo for
the benefits of membership, the checkoff automati-
cally terminated with the membership. But it could
be said that most-if not all-checkoffs are autho-
rized in consideration of the benefits the employees
seek to gain from union membership. 4 Employees
obviously pay union dues and authorize their dues to
be checked off in anticipation of some benefit to be
gained from union membership. Consequently, if the
majority's reasoning here is accurate, it would neces-
sarily follow that in every instance resignation from a
union necessarily revokes any outstanding dues
checkoff. But, as I state emphatically, this is not Board
law.
Clearly the language on which my colleagues rely
adds nothing of legal significance to the authorization
forms.'5 Rather, it is simply an introductory phrase
having no implications with respect to the continued
efficacy or to the need for cancellations of the autho-
rizations. If membership were intended to be the sine
1 However, I do agree with my colleagues and thus with the Administra-
tive Law Judge that Respondent Local violated Sec. 8(bX2) by seeking the
discharge of certain employees for nonpayment of dues for a subsequent
period when no contractual union-security clause was in effect.
" See International Chemical Workers, Local 143, AFL.CIO (Lederle
Laboratories), 188 NLRB 705. 707 (1971); Frito-Lay, Inc., 243 NLRB 137, in
which during a contractual hiatus period employees both resigned from the
union and submitted checkoff revocations. Not only did the Board majority
there fail to treat the resignations as revocations of the checkoff but also
refused to give effect to the revocations themselves.
"Obviously checkoff of dues solely to satisfy the obligation under an
agency shop would not be included, since such checkoffs may be in lieu of
membership.
i Contrary to the effort of the majority in fn. 9 to detract from my posi-
tion-thereby displaying their confusion-I am fully aware of the difference
between union membership and union representation. In fact, the majority's
efforts to find some "consistency" between the holdings here and in Frilo-
Lay are clearly unavailing. By concluding in Frito-Lay, as they do, that
absent some magic words such as "in consideration of the benefits of mem-
bership" the statutory provisions are inapplicable and impliedly concluding
herein that because of the inclusion of such language the statutory provisions
are also inapplicable, they have incomprehensibly confused this aspect of
Board law.
qua non for validity of the authorization, it could have
been so stated in the authorization-but that is not
the case here. Consequently, I would find that the
authorizations here in question were at all times ma-
terial in full force and that Respondent Local's at-
tempts to enforce the dues assignment were therefore
not unlawful.' 6 Accordingly, I dissent from the find-
ing of a violation by said attempts.
Finally, even under the majority's view of the
checkoff issue, what we have here is basically a dis-
pute concerning the meaning of certain contractual
language: i.e., that quoted above from the authoriza-
tions. There is no claim that Respondent Local pro-
ceeded in bad faith. On the contrary, as there were
outstanding, ostensibly unrevoked authorizations-
and the local could hardly be expected to anticipate
the majority's decision in this case' 7-it clearly had a
colorable claim to have the disputed dues checked off.
Thus, as Respondent Local acted reasonably and in
good faith with respect to an apparently ambiguous
contractual situation, there is no basis for finding that
its equesting the checkoff was improper.'"
Consequently, in view of the above, I would not
find, as do my colleagues, that Respondent Local's
attempt to force compliance with the disputed autho-
rization violated Section 8(b)(I)(A) of the Act.
*6 The majority position here is clearly at odds with the position taken by
the majority in Frito-Lav, supra. There. as previously indicated. during a
contract hiatus, i.e., when no union-security provision was in effect, employ-
ees resigned from the union. but rather than holding that no dues were owing
and none could properly be deducted by checkoff, the majority held not only
that dues could be checked off pursuant to outstanding authorizations but
also that the former members could not revoke the authorizations if the)
wanted to See, also, e.g.. Penn Cork & Closures, Inc., 156 NLRB 411 (1965).
where the Board held that after a deauthorization election outstanding
checkoff authorizations become terminable at will, and thus could at any-
time be revoked and thus rendered unenforceable. There is no suggestion in
that case that employee resignations. which were also involved, automati-
call) terminated the authorizations. In short, there is no legal basis for the
majority's claim that, where employees resign from a union and there is no
union-security clause in effect and thus no legal or contractual obligation to
pay dues, outstanding voluntary authonrizations are, absent specific revoca-
tion, necessarily canceled and unenforceable.
I rather doubt that even if Respondent Local could anticipate Board
results it would be of much help in situations like that here in issue. Thus, in
the present case the majority is holding that during a contractual hiatus
period a resignation from the Union automatically cancels out a checkoff
authorization; on the other hand in Frito-Lay, supra, they are holding that
during such period an explicit, written revocation by frmer union members
does not revoke their outstanding authorizations. I suppose the majority can
try to reconcile these apparent conflicting results. but the basis of such recon-
ciliation is hardly a logical one.
'B See Morton Salt Company. 119 NLRB 1402 (1958); also Nathan's Fa-
mous of Yonkers, Inc., 186 NLRB 131. 133 (1970).
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, the National Labor Rela-
150
SAN DIE;O) COUNTY DISTRIC1 COUlNCIL. OF CARPENTERS
tions Board has found that we violated the National
Labor Relations Act and we have been ordered to
post this notice.
WE WILL NOIr restrain or coerce employees
who exercised the rights guaranteed them in Sec-
tion 7 of the National Labor Relations Act in
resigning their union membership and returning
to work during the 1976 -77 strike against Camp-
bell Industries and San Diego Marine Construc-
tion Corp., by causing dues to be withheld from
such employees for the period between collec-
tive-bargaining agreements after they resigned.
WEt WIl. NOT threaten to cause the discharge
of any employee under the union-shop clause in
our collective-bargaining contracts for the em-
ployee's failure to pay dues for periods when
there was no collective-bargaining contract in ef-
fect.
WE WIl.L reimburse, with interest, employees
for dues collected under the above-described cir-
cumstances.
WE WILL NOT in any other manner restrain or
coerce employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
SHIPWRIGHTS, BOATBUILDERS AND HEILP-
ERS, CARPENTERS LOCAL UNION NO. 1300
DECISION
STATEMENT OF TIlE CASE
JAMES M. KENNEDY, Administrative Law Judge: This
case was heard before me on November 23, 1976.' in San
Diego, California, pursuant to a consolidated amended
complaint and notice of hearing issued on September 16 by
the Regional Director of the National Labor Relations
Board for Region 21. The consolidated amended complaint
is based upon a charge in Case 21-CB-5718 filed by Sverre
Seim on June II and upon a charge in Case 21-CB 5751
filed by Thomas Ellison on July 12 and thereafter amended
on September 13. The consolidated amended complaint al-
leges that the San Diego County District Council of Car-
penters (herein called Respondent District Council) and its
affiliate, Shipwrights, Boatbuilders and Helpers. Carpenters
Local Union No. 1300 (herein called Respondent Local).
have engaged in and are engaging in certain violations of
Section 8(b)(1)(A) and (2) of the National Labor Relations
Act, as amended.
Issues
There are four principal issues raised by the complaint.
all arising from Respondent Local's treatment of employees
who attempted to resign their union membership during the
course of a strike against their employer and who thereafter
I Hereinafter all dates are 1976 unless otherwise noted.
returned to work. The first issue to be resolved is whether or
not the employees' resignations were legally effective. If so.
then I must determine whether or not in May. Respondent
District Council. at the behest of Respondent Local. unlaw-
fulls imposed a $300 fine on each employee who crossed the
picket line after his resignation from Respondent L.ocal. Le-
gally separate from the resignation issue, but factually re-
lated, are the questions of whether or not beginning in
March Respondent Local unlawfully caused back dues
which had accrued during the course of the strike to be
withheld from the poststrike paychecks of tour emploNees
of San [)iego Marine Construction Corp. herein called San
Diego Marine): and whether or not in April Respondent
Local unlawfully threatened to cause the discharge of four
San Diego Marine employees because they failed to pay
union dues for the period of the strike. Respondents con-
tend that none of the employees involved had effectively
resigned from Respondent Local because the tfailed to
comply with the International Union's constitutional provi-
sions relating to resignations: that the fines were specifically
authorized by the union constitution and bylaws and were
lawful because the attempted resignations were ineffective:
that any dues deducted from the employees' paychecks
were lawful because they were deducted pursuant to valid
signed checkoff authorizations: and finally, the> contend
that they were privileged to ask San Diego Marine to dis-
charge employees who were delinquent in their dues be-
cause the employees were in violation of the union-shop
provisions of the applicable collective-bargaining agree-
ment. The General Counsel responds arguing that the
Union's constitutional provisions regarding resignation are
excessively restrictive under the federal labor policies as de-
fined by the Supreme (Court. that the fines were therefore
illegal to the extent that the! covered picket-line crossings
after the employees' resignations, that the dues deductions
were improper because the5 were for months during the
hiatus period between collective-bargaining contracts and
thereafter, and that the act of resigning from the Union
withdrew the consideration giving their checkoff authoriza-
tions validity.
All parties were given full opportunity to participate, to
introduce relevant evidence. to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record of the case, including the volumi-
nous exhibits. and from my observation of the witnesses, I
make the following:
FINDIN(iS OF FA('I
1. lIl BUSINESS OF Iit EMPI.OYERS
Respondents admit, and I find. that Campbell Industries
(herein called Campbell) and San Diego Marine are en-
gaged in the business of constructing and selling ships and
other oceangoing vessels at their shipyard facilities located
in San Diego, California. They further admit that each of
these employers during the past calendar year sold and
shipped goods valued in excess of $50,000 directly to cus-
tomers located outide Calitornia. Accordingly, they admit.
and I find. that (Campbell and San Diego Marine are em-
151
DECISIONS OF NATIONAL LABOR RELATIONS BOAR[
ployers engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.'
II. lHI LABOR OR(iANIZA'IIONS INVOI.VE D
Respondent District Council and Respondent Local both
admit, and I find. that at all times material, they were, and
are, labor organizations within the meaning of Section 2(5)
of the Act.
I11 . TIHE AI.I(iEI) UNFAIR I.ABOR PRA(II(ES
A. The Strike
Prior to October 1975, Respondent Local had collective-
bargaining agreements with both Campbell, by virtue of
Campbell's membership in a multiemployer bargaining unit
known as the Shipyard Industry of San Diego, and San
Diego Marine, through a separate agreement. In relevant
part, the agreements with each employer were identical. On
September 30, 1975, the 1972-75 agreements expired and
on October , 1975, a strike commenced at San Diego Ma-
rine, Campbell, and other employers bound by those agree-
ments. It ended on February 13, 1976. At that time the
employers each entered into new agreements; Campbell ap-
pears to have signed an individual agreement rather than
being bound by a multiemployer agreement as in the past.
The duration of the new contracts is from February 13,
1976, to February 12, 1979. The new agreements, like the
expired agreements, are essentially identical. Accordingly,
where appropriate, reference to one of the contracts will
also serve as reference to the other.
Both the 1972-75 and 1976-79 agreements contain iden-
tical, relatively standard union-shop clauses.4 In essence,
the clause requires each bargaining unit employee, as a con-
dition of employment, to become or remain a member in
good standing of Respondent Local on the 31st day follow-
ing the commencement of employment or following the ef-
fective date of the agreement, whichever is later. It further
requires bargaining unit employees to remain members in
good standing for the duration of the agreement and that
failure to comply with that requirement may result in the
employee's termination. It also contains certain safeguards
not relevant here.
2The General Counsel asserts in her brief that San Diego Marine is a
subdivision of Campbell. If that is so, there is no record evidence of that fact.
3Also parties to these agreements are the International Association of
Machinists, District Lodge 50, and its Local Lodge 389, and the Orange Belt
District Council of Painters No. 48. Their participation in the collective-
bargaining contract is not relevant to any discussion herein involving the
Carpenters.
4 Contrary to the General Counsel's assertion on page 10 of her brief that
the clause is a maintenance-of-membership clause, it is clear that it is a
union-shop clause. The clause, art. 4, sec. I, reads in pertinent part:
Each employee who is now or is hereafter employed in a job classifica-
tion covered by this Agreement shall, as a condition of continued em-
ployment, become or remain a member in good standing of the Union
on the thirty-first (31) day following the commencement of such em-
ployment or following the effective date of this Agreement, whichever is
later. Such employees shall remain members in good standing of the
Union for the duration of this Agreement as a condition of their em-
ployment. Failure of any employee to comply with the provisions of this
Section I may upon written request of the Union result in the termina-
tion of such employee.
The 1972-75 agreement contained no provision for dues
deduction. However, both Campbell and San Diego Marine
honored employees' dues checkoff authorization orms ex-
ecuted in favor of Respondent Local. Apparently this prac-
tice *was limited to Respondent Local and none of the other
unions party to this agreement followed this practice. How-
ever, the union-security provision of the 1976 79 contract
contains an additional section providing or dues checkoff.
That section (art. 1 , sec. 4) is set forth below in the oot-
note.'
B. The Provisions ( Re'spondetI ' (on. tiltuion and Baws.s
The constitution and bylaws of the United Brotherhood
of Carpenters and Joiners of America, as established by the
International Union, are binding upon both Respondent
District Council and Respondent Local. Section 47A of that
constitution sets forth the conditions and the manner in
which a member may resign from the Union. In essence it
permits a member to withdraw or sever his connection with
the Union by submitting a written resignation to the local
Union which shall then submit the resignation to its mem-
bership. If a majority of the local's members present at such
a meeting vote to accept the resignation, the resignation
may be approved. The full text of section 47A is set forth in
the footnote below.' However, section 471 of the constitu-
tion directs local unions not to accept resignations of mem-
bers when it is known that the resignation has been sub-
mitted for the purpose of violating the union's trade rules.
7
One of the trade rules involved is set forth in section 55A
Upon receipt of an authorization signed b an employee to whom this
Agreement is applicable, the Company shall, pursuant to the provisions of
such authorization, deduct from such employee's earnings, on the first pay-
day in each month. the amount owed to the Union by each such employee
for Union dues; however, should any such employee have no earnings due
him or her on the first payday in any month or should such employee's
earnings be less than the amount such employee owes the Union. the deduc-
tion shall be made from the emploee's earnings on the next succeeding
payday on which his or her earnings are sufficient to cover the amount of
dues owed. The Company shall promptly mail to the Union a check made
payable to the Union fobr the amount of dues the Company has withheld
during such month, which shall be accompanied by a list, in duplicate, con-
taining the names of employees and the amount deducted from each such
employee's earnings. Upon receipt of such check and list, an official of' the
Union shall sign one copy of such list, acknowledging receipt thereof, and
promptly return it to the Company.
6 Sec. 47A reads:
A member can withdraw or sever his connection with the United Broth-
erhood by resignation in writing, and it shall require a majority of the
members present at a regular meeting to accept a resignation. A mem-
ber who resigns can only be readmitted as a new member. A member
wishing to withdraw or sever connection with the United Brotherhood
shall present the resignation in wnting, which shall be laid over two
weeks for investigation. A member resigning shall be given a Resigna-
tion Card, which shall indicate an honorary withdrawal from the United
Brotherhood. Such card shall be furnished by the General Secretary on
application by the Local Union. on payment of Fifty Cents
5 0c) for
each card.
Sec. 47B reads:
A Local Union shall not accept the resignation of a member when it is
known that same has been submitted fbr the purpose of violating Trade
Rules. When a member resigns, or is expelled, or an applicant as cov-
ered by the Constitution and Laws of the United Brotherhood. who
works to the detriment of the United Brotherhood. the ocal Union or
District Council may place a special initiation fee against such person,
not to exceed Fifty Dollars ($50.00) over their regular initiation tee for
new or ex-members as provided for in their By-Laws.
152
SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS
(10) of the constitution. That rule prohibits members from
working behind picket lines which are duly authorized by
any subordinate body of the International--i.e.. a district
council or a local union. In addition to prohibiting resigna-
tion, the rule also provides that such a member may be
fined, suspended, or expelled by a majority vote of members
of the appropriate local union or by the delegates to the
district council having jurisdiction of the offense.
Similarly, Respondent District Council's bylaws and
trade rules provide in section 43, rule 13 that any member
charged and found guilty of crossing or working behind a
duly authorized picket line established by any subordinate
body of the International may result in a fine, a suspension,
or expulsion. The rule provides that the recommended fine
for a violation of this rule be $300. or expulsion, or both.
C. The Ernployees and the Checkoff Authorizations
D. The Resignations and the (Crossing o the Picake Lines
Each of the employees involved in this dispute sent Re-
spondent Local letters attempting to resign their union
membership and then returned to work. crossing the picket
line to do so. The following columns show the chronolog 3
for each employee:
San Diego Marine
Name
Date
Resigned
Date
Union
Rec'd
Letter
Date
Picket
Line
Crossed
The parties stipulated that prior to October I, 1975. the
date the strike commenced, the following employees were in
the bargaining units of Campbell and San Diego Marine:
Campbell
Romaldo Baca
Donald Evans
Joe Pacheco
Sverre Seim
Jose Serpa
Frank Storey
San Diego Marine
William McAndrew 8
Richard Beckwith
John Edwards
Barry Gage
Pat Krause
Each of the above-named employees was, at the time the
strike began, a member in good standing of Respondent
Local. Each of these employees had executed a dues check-
off authorization form. They were all executed between
1969 and 1974. None had been revoked.9
sThe General Counsel has alleged that Respondent Local violated only
Sec. 8(bX2) insofar as McAndrew is concerned: he is included in the alleged
unlawful threat discussed in F. infra. Accordingly, except where noted, the
following discussion does not apply to McAndrew.
eThe language of the checkoff authorization form provides for monthly
deduction of dues as well as for accelerated payment of unpaid dues. It
further provides for an annual 15-day revocation period as well as for a
revocation period 15 days prior to the expiration of the applicable collective-
bargaining agreement upon written notice to both the Employer and Re-
spondent Local. In pertinent part the text of the authorization form is as
follows:
Now, THEREFORE, in consideration of the benefits received and to be
received by me as a result of my membership in the Union, . the
undersigned, of my own free will and accord, hereby authorize and
direct said company to deduct my monthly membership dues in said
Union from my first pay of each month for the current month. If for any
reason, I should become delinquent in the payment of my dues to the
Union, I hereby further authorize and direct the Company, upon writ-
ten request from the Financial Secretary of the Union stating the num-
ber of months' dues owed by me to the Union and the amount thereof,
to deduct one (I) month's delinquent dues from each pay period until
my delinquent dues, as shown in the aforesaid written request from the
Financial Secretary of the Union, are fully' paid. All such deductions,
both current and delinquent, shall be promptly transmitted to the Fi-
nancial Secretary of said Union and, in any event, before the end of the
current calendar month. The amount of said dues per month shall be
determined by official action of said Union and certified to the Com-
pany by the Financial Secretary of the Union. I agree that the Company
and the Union shall be under no liability to me for deduction of dues
made and determined in the above manner.
This authorization may be revoked by me after one year from the
R.Beckwith
J.Edwards
R .Gage
P.Krause
12/5/75
12/5/75
12/5/75
12/7/75
12/9/75
12/9/75
12/9/75
12/9/75
12/8/75
12/8/75
12/9/75
12/8/75
Campbell
R.Baca
D. Evans
J. Pacheco
S.Seim
,. _Serpa
F. Storey
2/4/76
1/12/76
1/16/76
1/12/76
1/27/76
1/13/76
2/5/76
1/16/76
1/21/76
1/16/76
1/3n/76
1/16/76
2/4/76
1/13/76
1/19/76
1/13/76
1/28/76
1/14/76
As can be seen in each case. except for Gage. each em-
ployee returned to work immediately after mailing his resig-
nation letter but before Respondent Local received it. Gage
crossed the picket line the same day Respondent Local re-
ceived his resignation. Respondent Local's records, accord-
ing to Business Representative Mitchell G. Ybarra, show
that union observers saw the San Diego Marine employees
cross the picket line on the dates shown above, hut that at
Campbell they did not see Serpa until February 2. Baca
until February 5. and Evans and Seim until January 14.
date thereof or at any termination date of the applicable collective
agreement. whichever occur sooner. by my giving, at an) time during
but not before fifteen (15) days prior to such sooner date. written notice
thereof to the aforesaid Union and to my employer. Such notice shall
not affect a revocation of this authority until the expiration of the year
for which it was given. or until the termination date of the applicable
collectlle agreement, whichever occurs sooner. In the event no such
notice is so served by me prior to the expiration of the year f-or which
the authority s given, or prior to the termination date of such applicable
collective agreement, whichever occurs sooner. this authorization shall
continue for like periods of one year, or the termination date of the
applicable collective agreement. whichever occurs sooner, with the right
reserved to me to revoke the same in the same manner and within the
same time limits and with the same effect as pros ided hereinabove for
the initial and original authorization period.
1I3
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pacheco and Storey were both observed crossing the line as
noted above.
E. Respondent Local's Action on the Resignations
On December 9, 1975, a regular meeting of Respondent
Local was held. The minutes of that meeting contain the
following reference: "Several letters of resignation were
read out from Bros. who wished to go back to work at
Campbell's and San Diego Marine. M.S.C.' ° to follow the
rulings of the constitution in this regard (not to accept)."''
Respondent Local's office manager, C'arol Stevens, testified
that after she received the resignation letters, she merely
held them for appropriate action by Respondent Local, and
that in each case Respondent Local, acting pursuant to the
constitutional prohibition against approving resignations of
members who intended to return to work by crossing the
picket lines, refused to approve the resignations. Accord-
ingly, she continued to regard them all as members. Re-
spondent Local apparently did not present the Campbell
resignations of January and February to the membership. I
believe it fair to presume that this was not done because
Respondent Local's officers decided to treat them in the
same manner as the membership had treated those pre-
sented on December 9, 1975-not to approve them. The
testimony also shows that Respondent Local, during the
course of the strike, did not pursue dues collection as ac-
tively as it might have, but that at the end of the strike, it
began to demand unpaid dues. Stevens testified that since
the resignations had not been approved, she treated those
individuals as if they were still members and charged their
dues acounts accordingly.
F. The Discharge Threat and the Collection of Dues by
Payroll Deduction
As noted, the strike ended on February 13, and on that
date or shortly thereafter all the strikers returned to work.
By letter dated April I. Respondent Local's financial secre-
tary, Joe C. Cortez, advised San Diego Marine's employee
relations manager, Stephen Puente, that 13 employees, in-
cluding Beckwith, Gage, Krause, and McAndrew, were not
in compliance with the union-security clause of the new
agreement and would not be eligible to continue to work
for the Company after April 5 unless they obtained a clear-
ance from Respondent Local. By interoffice letter, Puente
notified the affected employees of Respondent Local's de-
mand. Also on April I, Cortez wrote Betty Nelson. who is
apparently San Diego Marine's payroll clerk, listing 42
members whose dues were in arrears.'? He directed her "to
catch them up I month per week." By letter dated April 6,
Cortez advised Puente that because of an attorney's opinion
Respondent Local would allow all of the members in ar-
rears to pay back dues at I month per week until the back
10 "M.S.C." means "moved. seconded and carried."
" It appears from the minutes that some Campbell employees had at-
tempted to resign as of December. These individuals are not identified and
apparently are not a part of the General Counsel's case herein, because the
Campbell employees involved here did not resign until January and Febru-
ary 1976.
'' The letter contains the names of 44 individuals; two were not in arrears.
dues were fully paid. By letter dated April 28. Cortez ad-
vised San Diego Marine that II employees were still in
arrears, including Krause, Beckwith, and McAndrew, and
asked the Company to "catch them up I week at a time
until up to date .... "
Puente testified that upon receipt of the April I letter to
Nelson, San Diego Marine began to deduct back dues as
requested. He testified that the only time the Company pays
back dues is when the Union so requests. Otherwise, he
says, the Company only pays the Union dues for the month
which is currently due. He further testified that the Com-
pany did not generally question the correctness of Respon-
dent Local's claims for back dues. Moreover, according to
Puente, the Company did not care if Respondent Local's
demand for dues covered the period of the strike. Accord-
ing to him, that was a matter between the employee and the
Union. and if the employee had a problem with the situ-
ation the employee could deal directly with the Union
about it.
The General Counsel has not alleged that Respondent
Local committed any violation of the Act in its attempts to
collect back dues from the Campbell employees. Examina-
tion of Respondent Local's dues record cards shows that,
with the exception of Baca, all of the employees involved
herein, whether employed by San Diego Marine or Camp-
bell, paid all the back dues requested. None was actually
discharged.
G. The Fines
Immediately after observing each of the Campbell and
San Diego Marine employees cross the picket line, Respon-
dent Local began following its procedures to discipline
these employees, under section 43, rule 13 of Respondent
District Council's bylaws.' No party asserts that the proce-
dures followed were not in accordance with the applicable
constitutional provisions and appropriate bylaws. Thus, fol-
lowing Respondent Local's procedures as approved by Re-
spondent District Council. citations were issued to the em-
ployees in December 1975, and January and February
1976. Thereafter, notices of alleged violations were sent to
each employee, trial dates were set, and trials were held
before Respondent District Council's trial committees. In
each case the trial committee found the employee guilty
and recommended a $300 fine, the maximum permitted un-
der the rule. On May 19 Respondent District Council ap-
proved the decisions of its trial committees and on May 20
sent each employee a letter notifying him that he had been
found guilty and had been fined $300. In addition the May
20 letter called the employees' attention to section 45N of
the International's constitution which provides generally
that fines must be paid within 30 days and that failure to
pay such a fine will result in expulsion from membership.
H. Ronuildo Baca
While all of the foregoing applies to Romaldo Baca, a
statutory employee at the time the strike began, Respon-
1 Beckwith, Edwards, Gage, and Krause were also charged with violaling
section 55A (10) of the International constitution As noted in B. supra, this
provision also prohibits members from crossing an authorized picket line.
154
SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS
dent Local contends that Baca became a supervisor at some
point and that even assuming that it committed violations
of the Act with respect to statutory employees, the com-
plaint should be dismissed insofar as it alleges a violation
involving Baca because of Baca's status as a supervisor
within the meaning of Section 2( 1) of the Act.
Baca testified that he had been employed by Campbell
for 12 years and that he was the most highly skilled crafts-
man in the bargaining unit, holding the position of "lead-
man." At the beginning of the strike on October 1, 1975. he
went to work for National Steel Shipbuilders (NASCO).
another shipyard located in San Diego. While there he was
in a bargaining unit represented by Respondent Local and
paid dues to Respondent Local for the months of Novem-
ber and December 1975. The record does not show when he
left NASCO. but Baca testified that he had left NASCO
prior to submitting his February 4 resignation letter. On
February 5, 1976, he returned to Campbell as a "working
foreman"; he no doubt knew he would hold such a position
when he submitted his resignation letter. He testified that
there is no difference between the duties of a leadman. his
earlier position, and those of a "working foreman." Article
5, section 3, of both the old and new agreements, demon-
strates that working foremen and leadmen are covered by
the collective-bargaining contract and are part of the bar-
gaining unit. Because of the skill level of the working fore-
man/leadman, he is required to instruct and help out those
who are not as skillful. Baca testified that he did not have
the power to hire or fire or even recommend the hiring or
firing of employees. Nor did he have the authority to disci-
pline or promote or recommend the promotion of employ-
ees. Further, he did not have the power to increase their
wages, adjust grievances, grant time off, or authorize over-
time. He said that as a working foreman he spent 6 hours
per day doing manual labor and the only duties he per-
formed which other employees did not perform involved
the design of furniture and cabinets and laying out the work
to be done. He testified that the appellation "working fore-
man" was just a title giving recognition to his skill level. He
has been making cabinets for 27 years, and others simply
do not have the experience and skills he has acquired over
that period. Respondents adduced no evidence to refute
Baca's testimony.
Based on the foregoing I conclude that Baca, in holding
the job of leadman or working foreman, was not a supervi-
sor within the meaning of Section 2(11) of the Act. Later,
on June 7, 1976, well after the completion of the transac-
tions involved herein, Baca became Campbell's company
foreman. There is no question that the job he currently
holds is supervisory within the meaning of Section 2(11) of
the Act.
IV. ANALYSIS AND CONCLUSIONS
A. The Resignations
It is axiomatic that Section 7 of the Act, as modified by
Section 8(a)(3) and 8(b)2), gives employees the right to join
or refrain from joining a labor union. That right necessarily
includes the right to resign from the union. However, the
proviso of Section 8(aX3) limits that right and imposes on
the employee the obligation to join (or remain a member of)
a lawfully recognized union if his employer and the union
enter into a collective-bargaining agreement containing a
lawful union-security clause. Such a clause obligates the
employee to join, after a grace period, and remain a union
member as a condition of employment as long as the con-
tract remains in effect. Upon the expiration of the agree-
ment, the obligation ceases, at least insofar as the union
may enforce it by threatening to cause the employee loss of
employment. Colonie Fibre Co., 69 NLRB 589 (1976), 71
NLRB 354 (1976), enfd. 163 F.2d 65 (2d Cir. 1947): New
York Shiphuilding Corp., 89 NLRB 1446 (1950): New Jersey
Bell Telephone Co., 106 NLRB 1322 (1953), enfd. sub nonm.
Communications Workers o America, CIO v. N.L. R. B.. 215
F.2d 835 (2d Cir 1954): Public Service Electric and Gas Co.,
120 NLRB 355 (1958).'4
Even where the contract remains in effect, however,
union membership in this context is defined by Section
8(a)(3) and 8(b)(2) and not by the union's constitution. Un-
der Section 8(a)(3) and 8(bX2) an employee will be deemed
a member in good standing if he has tendered "the periodic
dues and initiation fees uniformly required as a condition of
acquiring or retaining membership." See Union Starch &
Refining Compare,, 87 NLRB 779 (1949). enfd. 186 F.2d
1008 (7th Cir. 1951), cert. denied 342 U.S. 815 (1951). In
Union Starch the Board found that the union violated Sec-
tion 8(b)(2) and the employer Section 8(a)(3) when the em-
ployer, at the union's request, discharged employees who
had tendered dues and intitiation fees but who refused to
comply with certain of the union's constitutional require-
ments for membership. Thus, the Board said at 784 785:
We therefore read proviso (B) [of Section 8(a)(3)1 as
extending protection to any employee who tenders pe-
riodic dues and intitiation fees without being accorded
membership. If the union imposes any other qualifica-
tions and conditions for membership with which he is
unwilling to comply., such an employee may not be
entitled to membership, but he is entitled to keep his
job. Throughout the amendment to the Act, Congress
evinced a strong concern for protecting the individual
employee in a right to refrain from union activity and
to keep his job even in a union shop. Congress care-
fully limited the sphere of permissible union security,
and even in that limited sphere accorded the union no
power to effect the discharge of nonmembers except to
protect itself against "free rides."
We cannot say, as did the Trial Examiner, that by
refusing to comply with the Union's requests the em-
ployees had demonstrated that they "were entirely un-
willing to become members" and therefore that "mem-
bership" had not been "denied" to them. The
employees were willing to comply with the only term
or condition for membership which we think can, un-
der the provisos, legally be enforced by discharge-the
tender of the periodic dues and the initiation fees uni-
formly required.
14 If there is an "unmarred continuity" between contracts containing es-
sentially identical union-security clauses, the obligation to remain a union
member continues from the first contract to the second. National Lead Com-
pany, Titanium Division, 106 NLRB 545 (1953).
155
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the doctrine of this case, the union may only use,
as justification for a discharge or attempted discharge, the
employee's failure to pay dues and initiation fees. More-
over, those moneys must be due and owing under the col-
lective-bargaining agreement, and not for periods before or
after the term of the contract or for a period covered by the
contract, but during which the employee was not employed.
See N.L.R.B. v. Spector Freight System, Inc., 273 F.2d 272
(8th Cir. 1960), cert. denied 362 U.S. 962: International
Union of Operating Engineers, Local No. 139 (T. J. Butters
Construction), 198 NLRB 1195 (1972): Cortman Builders
Supply Co., Inc., 101 NLRB 327 (1952): Monsanto Chemical
Co., 97 NLRB 517 (1951); Local 714, United Autoworkers
(General American Aerocoach), 90 NLRB 239 (1950).
From Union Starch arose the doctrine of "financial core"
membership--a quasi-agency shop under which employees
subject to union-shop or maintenance-of-membership
clauses satisfy their contractual obligation to the union by
paying dues and initiation fees but do not actually join the
union. Hershey Foods Corporation, 207 NLRB 897 (1973),
enfd. 513 F.2d 1083 (9th Cir. 1975). Compare N.L.R.B. v.
General Motors Corporation., 373 U.S. 734 at 742 (1963).
This kind of membership is distinguishable from the
union membership described by the Supreme Court in a
series of cases dealing with union discipline. Beginning with
Scofield v. N.L.R.B., 394 U.S. 423 (1969), the Court dis-
cussed and developed the law of union disciplinary mea-
sures taken against union members. In Scofield the Court
said at 429, footnote 5:
The Court has held that the "policy of the Act is to
insulate employee's jobs from their organizational
rights." Radio Officers' Union v. National Labor Rela-
tions Board, 347 U.S. 17, 40 (1954). As an employee, he
may be a "good, bad, or indifferent" member so long
as he meets the financial obligations of the union secu-
rity contract. Thus the Board has found an unfair la-
bor practice by union and employer where an em-
ployee was discharged for violation of a union rule
limiting production. Printz Leather Co., 94 NLRB
1312 (1951). But as a union member, so long as he
chooses to remain one, he is subject to union discipline.
The Court in Scofield, at 429-430, went on to say:
.. it has become clear that if the [union] rule invades
or frustrates an overriding policy of the labor laws, the
rule may not be enforced, even by fine or expulsion,
without violating §8(bXI).
* *
. . §8(bXl) leaves a union free to enforce a properly
adopted rule which reflects a legitimate union interest,
impairs no policy Congress has imbedded in the labor
laws, and is reasonably enforced against union mem-
bers who are free to leave the union and escape the
rule.
The Court further refined the "escape" or resignation
rights of union members in N.L.R.B. v. Granite State Joint
Board, Textile Workers Union of America, Local 1029,
AFL-CIO, 409 U.S. 213 (1972), and Booster Lodge No. 405,
International Assn. of Machinists and Aerospace Workers v.
N.L.R.B., 412 U.S. 84 (1973). In both instances strikers re-
signed from their union in order to escape union discipline
when they either abandoned the strike or refused to embark
upon it. The unions attempted, as here, to discipline them
for failing to support the strike.
In Granite State. the Court citing the above-quoted Sco-
field language held that Section 7 of the Act permits a union
member the right to avoid discipline, but noted that the
case did not present the question of whether or not the
resignations were proper under the union's constitution. In
Booster Lodge, also a case where the efficacy of the union's
resignation rules was not presented, the union argued that
its constitution prohibited members from strikebreaking,
arguing that even if the member resigned, it had the right,
under contract law, to discipline him for violating the obli-
gation he undertook at the time he became a member. The
Court rejected the union's contention saying that the case
was essentially the same as Granite State.
It appears to me that if there is a conflict between the
Union Starch/lHershey and Scofield/Granite State/Booster
Lodge doctrines, they are easily reconciled. As long as an
employee meets his union-security obligation by paying the
appropriate moneys, he is a member of the union within the
meaning of Section 8(a)(3) and 8(b)(2). If he chooses, as is
right under Section 7, to become a constitutional member,
he may do so. Likewise, if he is already a constitutional
member, Section 7 permits him to resign even though Sec-
tion 8(a)(3) and 8(b)(2) imposes a financial obligation on
him under the terms of the union-security clause. Thus, as I
read the statute, together with the case law interpretation, it
is clear to me, despite the union resignation rule question
left open by the Supreme Court in Granite State and
Booster Lodge, that an employee may, at will, join or resign
from a union as long as he meets his financial obligations to
it as imposed by the collective-bargaining agreement." This
being the case, I find that each of the employees involved
herein effectively resigned his constitutional membership in
Respondent Local at the time his resignation letter was re-
ceived by Respondent Local, despite any union constitu-
tional limitation which might otherwise apply.
B. The Fines
Having found that each of the employees listed in section
I. D., supra, had effectively resigned his constitutional mem-
1 In International Union, United Automobile, Aerospace, Agricultural Im-
plement Workers of America (UA W), AFL CIO and its Local 899 (John I.
Paulding, Inc.), 142 NLRB 296, decided in 1963 and which was the third in
a series of Paulding cases, the Board, in explaining its second decision which
had been reviewed and commented upon by an appellate court, said at 300,
fn. 3:
It was the intention and purpose of the Board to hold that the employ-
ees in issue had effectively terminated their union membership irrespec-
tive of whether they had complied with union resignation rules or not.
But as that position was apparently not clearly set forth in that decision
of the Board, we now specifically hold here, on the basis of the facts in
the first Paulding case, as we did in the second Paulding case . .. that
these employees had effectively terminated their union membership.
Accordingly, it appears to me that the Board, long before the Supreme
Court's decisions in Granite State and Booster Lodge, was of the view that
Sec. 7 permitted "at will" resignations despite limitations against resigning
which may have appeared in union constitutions. See also the Board's deci-
sion in Hershey Food Corp., supra. Compare Sheet Metal Workers' Interna-
rional Association, Local Union No. 170 (Able Sheet Metal Product, Inc.), 225
NLRB 1178 (1976).
156
SAN DIEGO COUNTY DISTRI(T COUNCIl OF CARPF.NTERS
hership in Respondent l.ocal. it follows that the fines vio-
lated Section 8(b)(1)(A) of the Act to the extent that they
were levied for postresignation conduct. In Booster Lodge
No. 405, Internalional Assn. of Machinist.s vN. L. R. B.. 412
U.S. 84, the Supreme Court. per curianl, in a factual setting
indentical to that presented here, affirmed the Board and
the Court of Appeals which had found the fines for postres-
ignation picket-line crossings to be unlawful. See also local
Lodge No. 1994, International A.ssociation of Machinists and
Aerospace Workers. AFL.-CIO (O.K. Tool Company. Inct.).
215 NLRB 651 (1974).
As the General Counsel notes, however. Respondents
have not, in either their accusations or decisions, attempted
to distinguish between preresignation conduct and postres-
ignation conduct. Acting under the belief that all of the
employees were constitutional members, it fined each ot
them $300, even though the employees crossed the picket
line at least once before resigning, and many times there-
after. It is therefore reasonable to conclude that Respon-
dents regarded the multiple crossings as a single violation.
Under that circumstance it appears proper for Respondents
to rescind (or remit, if paid) on a pro rata basis that amount
of the $300 fine for crossings which took place after receipt
of the resignations. Moreover, the Respondents' records of
the fines should be expunged and changed to show that the
fines were levied only for the preresignation crossings. See
Booster Lodge No. 405, International ,4ssociation of Machitl-
ists and Aerospace Workers. AFL CIO (The Boeing Com-
pany), 185 NLRB 380, 383 (1970).
C. The Withheld Dues and the Threat
The more difficult questions are whether Respondent Lo-
cal violated Section 8(b)(2) by attempting, in its April I
letter to San Diego Marine, to collect dues under the union-
security clause of the new contract, as well as whether Re-
spondent Local violated Section 8(b)(l)(A) by obtaining
dues deductions from certain San Diego Marine employees'
paychecks for the period of the strike.
On April 1, Respondent Local wrote two letters to two
different San Diego Marine officials. One, sent to Labor
Relations Manager Puente, listed the names of 13 employ-
ees who were delinquent in their dues and, citing the union-
shop clause of the new agreement, warned the Company
that all 13 would not be eligible to work after April 5 if they
did not get a clearance from Respondent Local. Four of
these 13 are alleged discriminatees here: Beckwith, Gage.
Krause, and McAndrew. The first three had, as noted, re-
signed their membership. The General Counsel concedes on
page 10 of her brief that McAndrew was a constitutional
member. The dues record cards show that on March 14. all
three had I month's dues deducted from their paychecks.
The Union, following its practice. applied that amount to
the oldest outstanding month, October 1975. Thus, since
dues are payable on the first of each month, as of April 1.
1976, those three were 6 months in arrears. Notices of ar-
rears had been sent to Beckwith on February 11 (5 months),
and March 10 (6 months). An arrears notice was also sent
to McAndrew on March 10 (6 months).'" On April 5
11 Six-month arrears notices were also sent to Beckwith and McAndrew on
April 13. Apparently each had paid I month's dues after his first 6-month
notice.
McAndrew paid 2 months' dues. The dues receipt shows
that they were applied to the dues owed tbr November and
December 1975. Thus, like the other three. McAndrew. as
of April 1, was also 6 months in arrears. All four, therefore.
were charged with dues delinquencies for a period of time
which included the period of the strike when no collective-
bargaining contract was in effect.
The second letter sent on April 1. to the payroll depart-
ment. listed the names of 42 others who were also behind in
their dues. It appears from the face of the letter that none
owed dues prior to January 1976. Thus at worst, they were
only 4 months behind.
The 6-month arrearage is significant to Respondent Lo-
cal because section 45L of the international constitution
provides that a member must be stricken from membership
if he fails to pay his dues by the end of the sixth month.
Thus. it is clear that insofar as Cortez' April I letter
sought to utilize the union-shop clause of the 1976 79 con-
tract to collect dues for the precontract period. such an
attempt was unlawful. See N. L. R. B. v. Spector Freight Sys-
tenm, Inc.. 273 F.2d 272 (8th Cir. 1960): Operating Engineers
Local 139 (T. J. Butters Construction), 198 NILRB 1195
(1972): New ork Shipbuilding Corporation, 89 NLRB 1446
(1950). This conclusion is not affected in any way by the
resignations of Beckwith, Gage, and Krause, or the lack of
a resignation by McAndrew. McAndrew, of course, as a
constitutional member, owed the dues for that period. but
Respondent Local was not privileged to collect it by resort
to the union-shop clause. The other three owed Respondent
Local dues from the expiration date of the old contract
through the date of their resignations, but as in McAn-
drew's case, Respondent Local was not privileged to
threaten job loss under the union-shop clause to get them.
Between the date of their resignation and the 30th day after
the 1976-79 contract became effective, the5 were not obli-
gated to pay an) moneys whatsoever.
Nonetheless, as a result of the threat, as well as through
the use of the previously executed dues-checkoff authoriza-
tions, Respondent collected back dues during that period.
On April 6, Cortez, acting on an attorney's advice, wrote
Puente, implicitly withdrawing his April 1 threat, telling
Puente that Respondent Local would "allow the men to
pay all back dues at one (I) month per week" until fully
paid. I must presume that the letter was directed at the
situation of the 13 employees, and to some extent, at least.
was an attempt to mitigate the threat. I note that the letter
was not sent to any of the 13 employees, much less the 4
alleged in the complaint. Moreover, the April I letter had
already resulted in the desired effect-all four employees
mentioned in the complaint had by April 6 paid Respon-
dent Local a sufficient amount to avoid loss of their jobs."
Accordingly, I cannot find the April 6 letter to have miti-
gated the threat.
With regard to the allegation that the March. April, and
May dues deductions from the paychecks of San Diego Ma-
rine employees Beckwith, Edwards, Gage, and Krause were
unlawful, I am not persuaded. It is true that each of these
individuals had resigned his membership from the Union
7 Beckwith is a possible exception. His dues record card shows an illegible
entry made in April and applied to the November 1975 dues That April
payment may have been made after April 6. More likely it was made before
t57
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the strike. However, there remained on file with San
Diego Marine valid and unrevoked dues-checkoff authori-
zations. Those forms clearly permitted the Union to ask for
accelerated payment of back dues. When Respondent Local
demanded such back dues on behalf of these employees (in
the case of Edwards, by its April I letter to the payroll
department: in the case of Beckwith, Gage, and Krause by
its April 6 and 28 letters to Puente) it was merely demand-
ing payment pursuant to a procedure authorized by the
employee.
The General Counsel has not cited any case, nor has my
research revealed any, holding that previously authorized
dues deductions covering a hiatus period between contracts
are unlawful. To be sure, the four employees involved here
had resigned their constitutional memberships, but they
had not revoked their checkoff authorizations. Such a situ-
ation is not inconsistent with the concept of financial core
membership under Hershey Foods Corp., supra. The resig-
nations merely permitted the employees to avoid union dis-
cipline. They may have wished, for reasons known to them.
to continue paying dues to the Union. One reason might
have been to avoid a reinstatement fee when the union-shop
clause again forced them to rejoin.
It may be argued, however, that the resignations were
tantamount to rescission of the dues-checkoff authoriza-
tions. Assuming that the employees so intended, I believe it
reasonable for the Employer (who does not appear to have
been notified) and the Union to insist that the employee
follow the procedure agreed to by the employee: give 15
days' written notice to both the Union and San Diego Ma-
rine of intent to cancel the checkoff authorization prior to
the expiration of the contract.
Since no employee followed the prescribed procedure to
cancel the checkoff authorizations, the only possible way
they would have been rendered ineffective is by operation
of law.'" The first way is, as suggested above, by considering
the resignations from membership as a cancellation of the
authorization. However, in District Lodge No. 99 and Lodge
No. 2139, International Association of Machinists and Aero-
space Workers (General Electric Company), 194 NLRB 938
(1972), the converse was argued. There the employee fol-
lowed the procedure to cancel his dues deduction authori-
zation and then argued that the cancellation should be con-
sidered a resignation from membership. The Board rejected
that argument, saying he did not "clearly convey" his intent
to resign. Likewise, the four employees here did not "clearly
convey" their intent to cancel the authorizations, and I can-
not regard them as canceled.
A second possible way is to regard the dues checkoff au-
thorization as an integral part of the union-security clause
of the contract. Under such analysis, if the union-security
clause was rendered inoperable because of a hiatus, then
the checkoffs would likewise be inoperable. When a new
agreement containing a new union-security clause came
into effect then, it would be argued, its use to collect hiatus
18 Brotherhood of Railway. Airline and Steamship Clerks, etc. (Yello, Cah
Company of Tampa), 205 NLRB 890 (1973), enfd. 498 F.2d 1105 (5th Cir.
1974), is not apposite. In that case the dues-checkoff authorizations were
cancelled by operation of law upon the employee's departure from employ-
ment. In the instant case no affected employee left his employment with San
Diego Marine.
dues would be an unwarranted extension of the clause.
Colontie Fibre Co., supra: New York Shipbuilding Corp., su-
pra, Operating Engineers Local 139 (T. J. Butters Construc-
tion), supra; N.L.R.B. v. Spector Freight System, Inc., supra.
The problem with this approach is that nowhere in the
statute are the two connected in such a way so that the
authorization may be considered an integral of the union-
security clause. Section 8(a)(3) and 8(b)(2) provide that
unions and employers may negotiate a contract requiring
union membership as a condition of employment-assum-
ing the appropriate grace period. Section 302(c)(4) merely
grants an exception to the criminal prohibition against em-
ployer payments to unions and permits the employer's di-
rect payments of dues, as long as voluntarily authorized by
the employee.?
Indeed, in The Associated Press, 199 NLRB 1110 (1972),
affd. 492 F.2d 662 (D.C. Cir. 1974), a case involving the
Board's Collyer deferral 20 doctrine, the Board had occasion
to review a similar issue. Neither the old nor the new collec-
tive-bargaining contracts contained a union-security clause,
but they did contain dues-checkoff authorization clauses.
During the economic strike between the contracts, some
employees resigned their union membership and cancelled
their checkoff authorizations. The employer honored the
checkoff cancellations, but the union viewed the cancella-
tions as untimely and therefore ineffective. In the arbitra-
19 Even where the authorization is defective, it is not clear that such deduc-
tions are unlawful under Sec. 8. See Salant & Salant, Inc. 88 NLRB 816.
817-818, where the Board said:
The basis for the Trial Examiner's finding in this connection is that
the only requirement under Section 302 of the Act for checkoff is a
voluntary written authorization, and that that requirement was satisfied.
Thus, the Trial Examiner's theory appears to be that a determination of
whether checkoff is an unfair labor practice under Section 8 of the Act
turns on whether the checkoff in question meets the requirements of
Section 302 of the Act, and that a failure to satisfy such requirements
constitutes per se a violation of Section 8. This is tantamount to saying
that Section 302 created, in effect, a new specific unfair labor practice
where none existed before. fn. omittedl
We disagree with this interpretation of the impact of the Section 302
amendment to the Act. In our opinion, the lmitations on checkoff in
Section 302 iesre intended neither to create a new unfair labor practice, nor
even to be considered in determining whether checkoff violates Section 8 of
the Act. We reach this conclusion for the following reasons: (i) The
original House Bill as reported and passed specifically made a checkoff
that did not meet certain requirements an unfair labor practice under
Section 8(aX2), but this provision was eliminated from that section in
conference, and from the Bill as finally enacted, thereby implying that
unlawful checkoff was not intended to me made a per se unfair labor
practice; (2) The restrictions on checkoff appear instead in Title III of
the Act, with a similar implication; and (3) Section 302 itself establishes
what was plainly intended to be the method of enforcing and preventing
violations of its provisions, viz, criminal sanctions and injunction by
U.S. District Courts, upon prosecution and petition for injunction by
the Attorney General. Thus, the Act itself and its legislative history
compel the conclusion that Congress did not intend the newly created
limitations on checkoff in Section 302 to have any impact on the unfair
labor practice jurisdiction of this Board under Section 8, so as either to
create or not create a per se violation of Section 8 solely on the basis of a
violation of those limitations. In our opinion, the intent of Congress was
rather to leave undisturbed the application by the Board to checkoff, as
well as other conduct not specifically proscribed by amendments to
Section 8 its preexisting criteria for determining whether such conduct
as is engaged in constitutes a violation of the broad proscriptions of
Section 8. The intent was neither to supplement, nor to detract from,
such proscription of checkoff as Section 8 imposes completely apart
from, and independently of. the restnrictions on checkoff in Section
302.Emphasis supplied.]
2o Co/ller Insulated Wire. 192 NLRB 837 (19711.
158
SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS
tion which resulted, the arbitrator, agreeing with the union,
found the cancellations untimely and held that the em-
ployer owed dues on behalf of those employees for the con-
tract hiatus period. He specifically found that the checkoff
authorizations were wage assignments in favor of the union
which "survived the expiration of the contract and the em-
ployees were bound by [their] terms as was the employer."
The Board found that the arbitrator's decision under the
Spielberg test' was not clearly repugnant to the purposes
and policies of the Act. The Court of Appeals affirmed.
From Associated Press two concepts are clear. First.
union-security clauses and dues-checkoff authorizations are
clearly not so closely connected that the latter requires the
former for life. Second, the Board does not regard the en-
forcement of a dues-checkoff authorization for hiatus pe-
riod dues as necessarily violative of the Act.22 Under these
circumstances I am unable to find that Respondent Local
violated Section 8(b)(2) by asking the Employer to pay hi-
atus period dues in cases where a valid dues-checkoff au-
thorization remained in effect.
V. THE REMEDY
Having found that Respondent Local and Respondent
District Council have engaged in certain unfair labor prac-
tices, I shall recommend that they be required to cease and
21 Spielberg Manufacturing Company. 112 NLRB 1080 (1955).
22 A different result is obtained where "coercion" is involved. Pre-Cast
Slab and Tile Co., 88 NLRB 1237: Federal Stores Division of Spiegel. Inc. 91
NLRB 647; Bayly Manufacturing Company, 103 NLRB 1337 (1953). and
American Screw, Company, 122 NLRB 485 (1958). A violation will also be
found where dues are deducted without the employee's written authoriza-
tion. Guadalupe Carrot Packers, dbh/a Romap Carrot Company. 228 NLRB
369 (1977).
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act, including dues
reimbursement, with interest" where dues were exacted by
means of an unlawful threat, as well as rescission and re-
fund of the fines, with interest,24 expunging and correcting
the members' records to reflect only the lawful portion of
the fines.
Upon the foregoing findings of fact and upon the entire
record in this case, I make the following:
CoN(I.uSloNS OF LAW
1. Campbell and San Diego Marine are employers en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Respondent Local and Respondent District Council
are labor organizations within the meaning of Section 2(5)
of the Act.
3. By threatening employees with discharge pursuant to
an inapplicable union-security clause for failing to pay dues
for a period when dues were not owed, Respondent Local
violated Section 8(b)(2) of the Act.
4. By fining and causing employees to be fined fbr cross-
ing a picket line after they had resigned from the Union,
Respondent Local and Respondent District Council vio-
lated Section 8(b)( 1 )(A) of the Act.
5. By causing dues moneys to be withheld pursuant to
valid dues deduction authorizations for a period between
collective-bargaining contracts, Respondent Local did not
violate any section of the Act.
[Recommended Order omitted from publication.]
23 SeaJarers International Union of North .4merica, (rea lkev District.
AFL-CIO. 138 Nl.RB 1142 (1962).
24 Id
159