Service Employees Local 680 (Leland Stanford Junior University)

National Labor Relations Board - Board Decisions

Sep 23, 1977

232 N.L.R.B. 326 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Stanford Employees, Local 680, Service
Employees International Union, AFL-CIO and
The Leland Stanford Junior University. Case 20-
CB-3885
September 23, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On June 1, 1977, Administrative Law Judge Jerrold
H. Shapiro issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
We agree with the Administrative Law Judge's
findings, for the reasons stated by him, that Respon-
dent's notification to new employees that they were
required to become full members of Respondent as a
condition of their employment constitutes a violation
of Section 8(b)(1)(A). We further agree with the
Administrative Law Judge's finding that employees
Cabading and Haff effectively resigned from mem-
bership in Respondent, despite Respondent's refusal
to accept their resignations. We disagree, however,
with the Administrative Law Judge's finding that
Respondent's refusal to accept the resignations of
these employees on the ground that full membership
was a condition of employment was lawful under the
Act. To the contrary, we find that Respondent's
refusal to allow resignations is analogous to its
insistence on full membership because it is premised
on the same ground and constitutes a violation of
Section 8(b)(1)(A).
Employees Cabading and Haff wrote letters to
Respondent stating that they wished to resign from
membership in Respondent. A rule in Respondent's
bylaws allowed resignation from membership within
at least 90 days from the submission of a resignation
request. Respondent, however, disregarded its bylaws
At all times material, Respondent made known to employees its
position that "membership" included the signing of a membership
application card and the taking of an oath of membership, in addition to the
payment of fees and dues. Thus Respondent made clear that it considered
the contractual union-security provisions to require full membership rather
232 NLRB No. 49
and sent identical letters to Cabading and Haff
stating: "Your request for resignation is inappropri-
ate because under the collective bargaining agree-
ment you are required to maintain your membership
in the union as a condition of employment. (Article I.
D. 1. a and c) [referring to the contractual union-
security provisions]."'
The clear implication of Respondent's letters to
Cabading and Haff was that their employment
depended on full membership in Respondent and
that if they resigned Respondent would cause them
to lose their jobs. The implied threat of job loss if
employees withdraw from full membership in Re-
spondent constitutes as great a restraint on employ-
ees' exercise of statutory rights as the implied threat
of job loss if employees do not become full members
of Respondent. In either case the threat of adverse
job action is implicit in the statement that full
membership is a condition of employment. And, in
both cases, Respondent's implied threat tends to
prevent employees from exercising the right guaran-
teed them by Section 7 of the Act to refrain from
union activities, 2 except as provided in Section
8(a)(3).
Accordingly, we find that Respondent's refusal to
accept the resignations of employees Cabading and
Haff on the grounds that full membership is a
condition of their employment restrained and
coerced them in the exercise of rights guaranteed
them by Section 7 of the Act, in violation of Section
8(b)(1)(A) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, United Stanford Employees, Local 680, Service
Employees International Union, AFL-CIO, Palo
Alto, California, its officers, agents, and representa-
tives, shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as paragraph 1(c) and
reletter the subsequent paragraph accordingly:
"(c) Enforcing the union-security provisions of the
collective-bargaining agreement with The Leland
Stanford Junior University by refusing to accept the
resignations of employees, on the grounds that full
membership in the Union is a condition of employ-
ment."
than "financial core membership" as defined by the Supreme Court in
N L.R.B. v. General Motors Corporation, 373 U.S. 734 (1963).
2 We refer to those activities required by full union membership, and not
to the payment of fees and dues involved in "financial core membership."
See General Motors Corp., supra.
326
UNITED STANFORD EMPLOYEES, LOCAL 680
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT enforce the union-security
provisions of our collective-bargaining agreement
with The Leland Stanford Junior University by
notifying employees of this Employer that they
are required to sign our membership application
or take our oath of membership or that they are
required to perform any obligation of union
membership other than the tender of the periodic
dues and initiation fees uniformly required as a
condition of acquiring or retaining membership in
our Union.
WE WILL NOT enforce the union-security
provisions of our collective-bargaining agreement
with The Leland Stanford Junior University by
instituting and maintaining a lawsuit against
employees of this Employer for an object of
compelling them to sign our articles of member-
ship or to compel them to perform any obligation
of union membership other than the tender of the
periodic dues and initiation fees uniformly re-
quired as a condition of acquiring and retaining
membership in our Union.
WE WILL NOT enforce the union-security
provisions of our collective-bargaining agreement
with The Leland Stanford Junior University by
refusing to accept the resignations of employees
on the grounds that full membership in our Union
is a condition of employment.
WE WILL NOT in any like or related manner
restrain or coerce employees of The Leland
Stanford Junior University in the exercise of their
rights guaranteed by Section 7 of the Act.
UNITED STANFORD
EMPLOYEES, LOCAI. 680,
SERVICE EMPLOYEES
INTERNATIONAL UNION,
AFL-CIO
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case, held on April 12, 1977, is based upon a
Sec. 7 of the Act provides: "Employees shall have the right to self-
organization, to bargain collectively through representatives of their own
choosing ... and shall also have the nght to refrain from any or all such
charge filed on April 22, 1976, as amended on January 24,
1977, by The Leland Stanford Junior University, herein
called the Employer, against United Stanford Employees,
Local 680, Service Employees International Union, AFL-
CIO, herein called Respondent, and a complaint issued on
February 9, 1977, by the General Counsel of the National
Labor Relations Board, herein called the Board, alleging
that Respondent has engaged in unfair labor practices
within the meaning of Section 8(b)(IXA) of the National
Labor Relations Act, as amended, herein called the Act.
Respondent's answer denies the commission of the unfair
labor practices.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having considered the
posthearing briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER INVOLVED
The Employer, The Leland Stanford Junior University, is
a private nonprofit institution of higher learning located in
the State of California which annually receives gross
revenues, excluding contributions not available for operat-
ing expenses, in excess of $1 million and annually
purchases in excess of $50,000 of goods and services
directly from suppliers located in States other than
California. Respondent admits, and I find, that the
Employer is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent, United Stanford Employees, Local 680,
Service Employees International Union, AFL-CIO, ad-
mits, and I find, that it is a labor organization within the
meaning of Section 2(5) of the Act.
IIn. THE UNFAIR LABOR PRACTICES
A. The Questions for Decision
Section 8(b)(1)(A) of the Act in part reads: "It shall be
an unfair labor practice for a labor organization . . . to
restrain or coerce . . . employees in the exercise of the
rights guaranteed in Section 7: Provided, that this
paragraph shall not impair the right of a labor organization
to prescribe its own rules with respect to the acquisition or
retention of membership therein .... " The complaint
alleges Respondent violated Section 8(b)(IXA) as follows:
(a) Distributed notices to newly hired employees "de-
manding or requiring them to join and become full
members of Respondent";
(b) "[M]aintained a grievance against [the Employer]
seeking to require employee Charles Hall to become a full
member of Respondent";
(c) "[I ]nstituted and maintained a court suit against
employees Charles Hall, Lupe Del Real, and Ed Bartal,
seeking to compel said employees to become full members
of Respondent"; and
activities except to the extent that such nght may be affected by an
agreement requiring membership in a labor organization as a condition of
employment as authorized by Section 8(a(3)."
327
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) "[R]efused to permit employees Jimmy Cabading
and Richard E. Haff to resign from full membership in
Respondent."
B. The Selling
Respondent is the exclusive collective-bargaining repre-
sentative for a complement of the Employer's employees
employed in an appropriate unit. Its initial collective-
bargaining agreement with the Employer was executed
June 24, 1974, and was effective from that date until
August 31, 1976. The union-security provisions which are
included in article I, section D of the 1974-76 agreement
read as follows:
D. Union Security
1. Union Membership, Dues, and Fees
a. Union Members
Each worker who is a member of the Union in
good standing on the date of the signing of this
agreement and each worker who thereafter
becomes a member shall as a condition of
continued employment maintain their member-
ship in the Union in good standing.
b. Non-union Members
Each worker hired prior to the date of the signing
of this Agreement who is not a member of the
Union in good standing on the date of signing of
this Agreement shall within thirty-one (31) calen-
dar days after the signing of this Agreement as a
condition of employment either acquire and
maintain membership in the Union in good
standing or tender to the Union a service fee
equal to the periodic dues uniformly required as a
condition of membership in the Union.
c. New Hires
(I) Union Membership
Each worker hired on or after the date of
signing of this Agreement shall, as a condition of
employment, on or before the completion of the
trial period acquire and maintain membership in
the Union in good standing.
(2) Agreement
Both the University and the Union shall
undertake to advise workers hired subsequent to
the date of signing of this Agreement of their
obligations under this Article. For this purpose
the University shall supply newly hired workers
within the first week of work an informational
packet which the Union shall provide for distribu-
tion.
d. Dues and Fees
(1) Deduction
Any worker required to pay periodic member-
ship dues or equivalent service fees to the Union
as a condition of employment under this Article,
will be deemed to have satisfied their obligations
for any period (after dues or fees deduction
begins) in which they have had a payroll deduc-
tion authorization on file with the University.
(2) Non-payment
Upon receipt of written notice from the Union
of the failure of any worker to comply with
Section D. 1. a, b, or c, above, as applicable, the
University within ten (10) working days shall
separate the worker from employment for just
cause.
(3) Other Grounds
No worker shall be separated for non-mem-
bership in the Union if the University has
reasonable grounds for believing that the Union's
request is for reasons other than the failure of the
worker to remain in good standing, which means
only the obligation to tender periodic dues
uniformly required as a condition of membership
in the Union.
On October 27, 1976, the parties entered into a successor
agreement which contains union-security provisions identi-
cal to the ones set forth above. But the parties, as a part of
the new agreement, entered into a letter of understanding
which in substance states that the contractual requirement
that employees shall acquire and maintain membership in
good standing as a condition of employment "means only
the obligation to tender periodic dues uniformly required
as a condition of membership in the Union." Also it was
agreed that the "informational packet" which Respondent
gives to the Employer for distribution to new employees
would include a letter informing the employees that the
contractual requirement that they become and remain
members of Respondent as a condition of employment
does not mean they must join Respondent but only means
they must pay Respondent monthly membership dues.
C. Respondent Notifies New Employees They Are
Required To Become Members of Respondent
The facts pertinent to the allegation that, in violation of
Section 8(bXl)(A) of the Act, "Respondent has caused
notices to be disseminated to newly hired employees
demanding or requiring them to join and become full
members of Respondent" are undisputed and briefly
summarized.
Throughout the term of the 1974-76 collective-bargain-
ing agreement employees who were new to the contractual
bargaining unit, soon after they began work, were notified
by Respondent that, after they completed their trial period
(normally 90 days), pursuant to the contractual union-
security provisions, they were required to join Respondent
and were told that this meant filling out a membership
328
UNITED STANFORD EMPLOYEES, LOCAL 680
application card and taking an oath of membership. (G.C.
Exh. 12)
Section 8(b)(IXA) of the Act broadly interdicts any
union conduct threatening job security of employees
because of the employees' refusal or failure to abide by
union membership conditions. E.g., Marlin Rockwell
Corporation, 114 NLRB 553, 555-556 (1955). Respondent's
notification to newly hired employees that they were
required to fill out a membership application and take
Respondent's oath of membership constituted an implied
threat of reprisal calculated to interfere with the employees'
statutory right to refrain from any and all union activities.2
This conduct was not legitimatized by the valid union-
security provisions in the 1974-76 collective-bargaining
agreement between Respondent and the Employer. In
construing the union-security proviso (proviso (B) to Sec.
8(a)(3) of the Act) the Supreme Court has held that "it is
permissible to condition employment upon membership,
but membership, insofar as it has significance to employ-
ment rights, may in turn be conditioned only upon
payment of fees and dues. 'Membership' as a condition of
employment is whittled down to its financial core." General
Motors Corporation v. N. LR.B., 373 U.S. 734, 742 (1963).
Also see N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175,
197, fn. 3 (1967), and Amalgamated Association of Street,
Electric Railway & Motor Coach Employees of America v.
Lockridge, 403 U.S. 274, 284 (1971). Likewise, it is also
clear that where an employee pays the required dues and
fees, but fails to obey some union-imposed obligation, such
as taking a membership oath or signing a membership
application, an employer who discharges or a union that
attempts to cause or causes the employee's discharge for
that reason, respectively violates Section 8(aX3) and 8(b)(2)
of the Act. Union Starch & Refining Company, 87 NLRB
779 (1949), enfd. 186 F.2d 1008 (C.A. 7, 1951); Local No.
749, International Brotherhood of Boilermakers v. N.L.R.B.,
466 F.2d 343 (C.A.D.C., 1972); N.LR.B. v. Hershey Foods
Corporation, [Sequoia Employers Council], 513 F.2d 1083
(C.A. 9, 1975). Nevertheless, despite this clearly delineated
statutory scheme permitting unions, in the administration
of contractual union-security provisions, to only impose
financial core obligations upon employees, Respondent
told employees they were required to become members of
Respondent and told them that membership meant filling
out a membership application card and taking a member-
ship oath.3 I find that by engaging in this conduct
Respondent reasonably tended to restrain and coerce
employees in their statutory right to refrain from abiding
by union membership conditions. Accordingly, by engag-
2 Respondent did not tell the employees in haec verba that these
requirements were a condition of employment but. nonetheless, I am of the
opinion that the statement reasonably tended to restrain or coerce the
employees within the meaning of Sec. 8(bX I KA) of the Act. Cf. International
Union of Electrical. Radio and Machine fWorkers, Local 601, AFL-CIO
( Westinghouse Electric Corporation), 180 NLRB 1062 (1970).
: The record does not support Respondent's contention that in informing
new employees about their union shop obligations it simply used the
language of the statute. As found, supra. Respondent, in speaking to the
employees about their union shop obligations, defined "membership" in
terms of the employees filling out a membership application and taking an
oath of obligation.
Respondent argues that the claim that a union shop employee has no
"membership" responsibility other than the payment of dues and an
ing in this conduct Respondent violated Section 8(b)(l)(A)
of the Act.4
D. The Hall Grievance
The complaint alleges that Respondent violated Section
8(b)(1)(A) of the Act in that it has "maintained a grievance
against [the Employer] seeking to require employee
Charles Hall to become a full member of Respondent."
The facts which are undisputed are set forth herein.
In June 1974, when the 1974-76 collective-bargaining
contract was executed, Charles Hall was employed by the
Employer outside of the contractual bargaining unit. On
September 1, 1974, Hall was reclassified by the Employer
and transferred to a job within the contractual bargaining
unit. When this occurred the Employer advised him that he
was obligated to pay Respondent the regular periodic dues
uniformly required as a condition of membership. The
Employer did not advise him that he was a "new hire"
within the meaning of the contractual union-security
provisions, nor did it advise him that he was required to
become and remain a member of Respondent. Likewise,
the Employer did not give Hall a copy of the form letter
which it regularly supplied to employees, new to the
bargaining unit, which informed them of their obligation to
join Respondent under the contractual union-security
provisions. Following his transfer into the bargaining unit,
Hall executed a dues checkoff authorization but did not
pay an initiation fee or join Respondent.
On February 27, 1975, Respondent's president, pursuant
to the contractual grievance-arbitration procedure, filed a
"charge," herein called a grievance, against the Employer
alleging that Hall "has not complied with Article
l.D.lc.(l)" 5 of the collective-bargaining agreement. The
action required to settle the grievance was stated as "in or
out." The parties were not able to resolve the grievance, so,
pursuant to the contractual grievance-arbitration proce-
dure, they submitted the matter to an arbitrator, David
Karasick, for final binding arbitration.
The Employer argued before the arbitrator that the
grievance was not arbitrable since Respondent was not
contending the Employer had acted in violation of the
contract but was merely seeking an advisory opinion
concerning the meaning of the contract. Respondent
agreed that it was seeking an opinion as to the meaning of
the union-security provisions of the contract but argued to
the arbitrator that its grievance was arbitrable because the
Employer, in classifying Hall as falling within the agency
shop rather than the union-shop proviso of the contract,
had injured Respondent in at least three respects: (I) The
initiation fee "is very questionable." In support of this contention
Respondent refers to the fact that the employees involved in Union Starch,
supra, were willing to join the union and that the Supreme Court in General
Motors, supra, indicated that "the employee may have to become a 'member'
under a union shop contract, in the sense that the Union may be able to
place him on its rolls" (373 U.S. at 743-744). These contentions. however,
have been rejected previously. Hershey Foods Corporation, 207 NLRB 897,
901 902 (1973), enfd. 513 F.2d 1083. 1086-87 (C.A 9, 1975).
5 This provision which is included in the contractual union-security
provisions, as set forth, supra, provides that "each worker hired on or after
the date of the signing of this agreement shall, as a condition of
employment, on or before the completion of the trial period acquire and
maintain membership in [Respondent ] in good standing."
329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer failed to advise Hall, as it did all new hires, that
it was necessary for him to join Respondent as required by
article l.,D.,l.,c. (2) The Employer took the position that,
as an agency-shop employee, Hall has no obligation to
become a member of Respondent. (3) The Employer
deprived Respondent of the basis for a civil suit against
Hall for failing to pay his initiation fee and become a
member of Respondent on the theory that if Hall had been
properly classified by the Employer as subject to the terms
of the union-shop proviso, the Employer's offer to him of a
position within the contractual bargaining unit would have
been made on condition that he join Respondent and, by
accepting such an offer, Hall would have become a party to
an agreement with the Employer of which Respondent was
a beneficiary and, as such, could enforce its legal right in a
civil suit against Hall. In this last respect Respondent,
citing the Union Starch6 line of cases, acknowledged to the
arbitrator that it could only move against Hall outside the
confines of the collective-bargaining agreement, that it
could not legally ask the Employer to terminate Hall for
not joining the Respondent and was not seeking Hall's
termination, but was grieving "first of all, because the
[Employer's] conduct has deprived us of a civil suit for
damages and possible specific performance; and, second,
because the [Employer] failed to advise Hall of his
obligation to become and remain a member."
On December 26, 1975, the arbitrator issued his OPINION
AND AWARD concluding that the matter raised by the
grievance was arbitrable and, with respect to the question
raised by the grievance, concluded that "with respect to the
duties and obligations created by the Union Security
Clause (Article I.D.I.), Charles Hall is in the Union Shop
category (Article I.D.l.c.) rather than the Agency Shop
category (Article l.D.l.b.)." In concluding that the griev-
ance was meritorious the arbitrator acknowledged that
Respondent was not privileged to take any action against
Hall within the confines of the contractual union-security
provisions and observed that, "what relief beyond the
confines of the contract the Union may be entitled to seek
either by way of civil suit against Hall for damages or
specific performance is a matter for the courts to determine
at such time as theirjurisdiction may be invoked."
I do not agree that by maintaining the grievance involved
herein Respondent violated Section 8(b)(l)(A) of the
Act.7 Recently in California Dump Truck," the Board held
that a respondent union's resort to the contractual
grievance-arbitration procedure to enforce an unlawful
contract clause did not constitute a violation of the Act
because, as the Board, citing Television Wisconsin, Inc.,9
P Union Starch & Refining Company. 87 NLRB 779 (1949).
7 I reject Respondent's contention that the instant situation is a proper
one for the Board. under the doctnne enunciated in Spielberg Manufacturing
Cornpanr'. 112 NLRB 1080 (1955), to withhold its jurisdiction and defer to
the arbitrator's decision. Here, the question for decision in the unfair labor
practice proceeding whether the processing of the Hall grievance violated
the Act was neither presented nor considered in the arbitration
proceeding See Raytheon Compan), 140 NLRB 883, 884-886 (1963). DC
Internationl. Inc. 162 NL RB 1383, 1384-85 (1967): Fleer Distributing
Service. Inc., 200 NL.RB 196 (1972).
IleaWs, High.uar. Building and Construction Teamsters Committee for
Northern (California IB'CW&HA (California Dump Truck Owners Associa-
tion), 227 NLRB 269, 274 (1976).
11 224 Nl RB 722. fn. 2 (1976).
explained, "[i]t does not appear from the record that the
grievances were filed for the purpose of accomplishing an
unlawful object." Here, the whole record establishes that
the disputed grievance was not processed for the object of
compelling Hall to join Respondent or the Employer to
terminate him for refusing to do so but it was processed to
secure a determination from an arbitrator, in the nature of
an advisory opinion, as to whether Hall, and others in his
situation, were covered by the union-shop rather than the
agency-shop proviso of the contractual union-security
agreement. In processing the grievance against the Em-
ployer, Respondent did not seek to have the Employer
engage in any conduct which was calculated to restrain or
coerce Hall in the exercise of his rights guaranteed by the
Act. Under the circumstances, I shall recommend the
dismissal of the portion of the complaint alleging that
Respondent's grievance against the Employer, involving
employee Hall, violated Section 8(b)(1)(A) of the Act.t 0
E. The Lawsuit
The complaint alleges that from April 14, 1976, until
approximately May 20, 1976, in violation of Section
8(b)(l)(A) of the Act, "Respondent instituted and main-
tained a court suit against employees Charles Hall, Lupe
Del Real, and Ed Bartal, seeking to compel said employees
to become full members of Respondent." The undisputed
facts are set out herein.
In June 1974, when the 1974-76 collective-bargaining
contract was executed, employees Bartal and Del Real, as
well as Hall, were employed by the Employer outside of the
contractual bargaining unit. On or about September 1,
1974, all three were reclassified and transferred to jobs
within the bargaining unit. They executed dues checkoff
authorizations with the Employer and, pursuant to these
authorizations, the Employer deducted from their wages
and paid to Respondent a sum equal to their membership
dues, but none of these employs s have paid an initiation
fee or joined Respondent.
On December 26, 1975, Arbitrator Karasick issued his
OPINION AND AWARD in the case involving Respondent's
grievance against the Employer involving Hall, discussed,
supra, wherein he concluded that employees such as Hall,
Del Real, and Bartal, who were employed prior to the
execution of the collective-bargaining agreement but were
subsequently transferred into the contractual bargaining
unit, were covered by the union-shop provisions of the
contract rather than the agency-shop provisions.
o1 I reject General Counsel's contention that the processing by Respon-
dent of the grievance violated 8(bXlXA) because it was Respondent's
subjective intent to use a favorable arbitrator's decision as a means to bring
a lawsuit against Hall for an unlawful object. California Dump Truck, supra,
which held that the processing of a grievance is not unlawful unless the
record reveals it was filed for "the purpose of accomplishing an unlawful
object," cited as support for this proposition, Television Wisconsin, supra,
wherein the Board, in concluding that a respondent union violated
8(b)(1)(A) by filing a lawsuit, stated: "We agree with the Administrative
Law Judge's finding that the Union's action in filing a suit to enforce an
unlawful union-security clause violated Sec. 8(bXI)(A) of the Act - not
because of the Union's subjective intent but because of the unlawful objective
sought by the Union," 224 NLRB 722, fn. 2 (emphasis supplied).
330
UNITED STANFORD EMPLOYEES, LOCAL 680
On or about March 4, 1976, Bartal and Del Real received
the following identical letters from Respondent's member-
ship secretary:
. . . in November 1975, 1 informed you that as a new
member of the bargaining unit you are required to join
the Union.
Since then, an arbitrator has upheld the Union's
position in this matter.
Your initiation fee is now $50, since you have passed
the 60 day period since notification.
I am enclosing a membership application card for
your convenience. Please complete and return with the
$50 initiation fee ....
The employees apparently ignored these letters.
On April 14, 1976, Respondent filed a COMPLAINT FOR
BREACH OF CONTRACT, AND SPECIFIC PERFORMANCE in the
Superior Court of the State of California, County of Santa
Clara, against Hall, Del Real, and Bartal. The complaint,
in substance, alleged as follows: In or about January 1976
the Employer entered into separate oral employment
contracts with the defendant employees wherein the
Employer offered to employ them within the bargaining
unit covered by the 1974-76 collective-bargaining agree-
ment upon the condition that they promise to pay an
initiation fee to Respondent and to join and maintain
proper membership in Respondent; the aforesaid employ-
ment contracts were entered into between the defendants
and the Employer for the benefit of Respondent; the
Employer performed its part of the bargain but each
defendant breached his part of the bargain by not
performing his promise to pay the Respondent's initiation
fee and to join and maintain membership in Respondent.
In order to remedy the alleged breach of contract,
Respondent sought from the court an order which, among
other things, directed the employees "to sign the articles of
membership in [Respondent] and do all other acts
necessary to join and maintain proper membership in
[Respondent ]." I1
On April 26, 1976, the Employer filed its charge in the
instant case alleging in substance that Respondent violated
Section 8(b))X(A) of the Act by bringing the aforesaid
lawsuit against the three named employees to compel them
to become members of Respondent.
On April 29, 1976, Respondent wrote Hall, Del Real, and
Bartal that "to prevent any prejudice to your rights arising
out of the situation in which you filed an unfair labor
practice charge with the [Board] we are extending your
time to answer the complaint filed against you on April 14,
1976, [until]. . . June i, 1976, (for Del Real), June 2, 1976,
(for Bartal), and June 6, 1976, (for Hall)."
On May 18, 1976, Respondent in connection with the
lawsuit filed a REQUEST FOR DISMISSAL without prejudice to
refiling its complaint, which request was granted by the
court on May 24, 1976.
The complaint in this case issued on February 9, 1977.
:l Also Respondent sought payment of its initiation fee as well as $50
compensatory damages from each employee with interest plus court costs.
On April 8, 1977, 4 days before the commencement of
the hearing in this matter, Respondent, in connection with
the lawsuit, filed a REQUEST FOR DISMISSAL, with prejudice,
of that part of the complaint which requested specific
performance - that Hall, Del Real, and Bartal become
members of Respondent - which request was granted by
the court the same day.
The question for decision is whether Respondent's
lawsuit against the employees amounts to impermissible
restraint and coercion within the meaning of Section
8(b)(IX)(A) of the Act. Clearly, the filing of this lawsuit
reasonably tended to coerce and restrain the employees.
Faced with the imposition of the costly burden of
defending against the lawsuit, employees may well feel
compelled to forego their guaranteed right under the
statute not to become full members of Respondent, rather
than risk involvement in a lawsuit whose outcome they
cannot predict. And, if they choose to litigate, they would
be forced to bear the expenses of hiring an attorney whose
services would not otherwise be required. However, the
Board has long held that, despite the impermissible
coercive effect upon employees' statutory rights caused by
a lawsuit, as a matter of policy, the "Board should
accommodate its enforcement of the Act to the right of all
persons to litigate their claims in court, rather than
condemn the exercise of such right as an unfair labor
practice." Clyde Taylor, d/b/a Clyde Taylor Cornpany, 127
NLRB 103, 109 (1960). But, in those cases involving
Section 8(bX 1) of the Act where the evidence reveals that a
respondent union has filed a lawsuit in pursuit of an
unlawful object, the Board deviates from its general policy
of accommodation and finds that the filing of the lawsuit
violates the Act. Booster Lodge No. 405, IAM, AFL-CIO
(The Boeing Company), 185 NLRB 380 (1970); Wisconsin
River Valley District Council of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO (Skippy
Enterprises, Inc.), 218 NLRB 1063 (1975); Television
Wisconsin, Inc., 224 NLRB 722 (1976); International
Organization of Masters, Mates and Pilots, AFL-CIO (Cove
Tankers Corporation), 224 NLRB 1626 (1976). This is what
occurred in the instant case. Respondent's lawsuit was filed
to accomplish the object of compelling employees Hall,
Del Real and Bartal "to sign the articles of membership in
[Respondent], and do all other acts necessary to join and
maintain proper membership in [Respondent]." This was
an unlawful objective inasmuch as the Act permits unions
to impose only financial core obligations on employees in
the administration of contractual union-security provi-
sions. General Motors Corporation, v. N.LRIB., 373 U.S.
734 (1963); Union Starch & Refining Company, 87 NLRB
779 (1949), enfd. 186 F.2d 1008 (C.A. 7, 1951); N.LR.B. v.
Hershey Foods Corporation, 513 F.2d 1083 (C.A. 9, 1975).
Based on the foregoing, I find that Respondent's action in
filing a lawsuit for the unlawful object of compelling
employees Hall, Bartal, and Del Real "to sign the articles
of membership and do all other acts necessary to join and
maintain proper membership in [Respondent]" constitutes
a violation of Section 8(bX l)(A) of the Act.
331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The Refusal To Allow Employees To Resign
Their Membership in Respondent
The complaint alleges that in violation of Section
8(b)(l)(A) Respondent on or about August 20, 1976,
"refused to permit employees Jimmy Cabading and
Richard Haff to resign from full membership in Respon-
dent." The facts which are undisputed are briefly stated.
During the time material herein Cabading and Haff were
members of Respondent employed by the Employer in
positions covered by the 1974-76 collective-bargaining
agreement. Cabading, on July 12, 1976, and Haff, on
August 10, 1976, wrote Respondent stating that they
wished to resign their membership. On August 20, 1976, the
membership secretary of Respondent wrote identical letters
to Cabading and Haff acknowledging receipt of their
letters of resignation and rejected their resignation requests
for the following reason: "Your request for resignation is
inappropriate, because under the collective bargaining
agreement you are required to maintain your membership
in the Union as a condition of employment (Article I.D. . a
and c) [referring to the contractual union shop provi-
sions]." Also the letters informed the employees that, if
Respondent had not met their needs and they had specific
gripes against Respondent, perhaps they could be resolved
and informed them that Respondent's representatives
would like to talk to them about the reasons which caused
them to submit their resignation requests.
I am persuaded that, for the purposes of the National
Labor Relations Act, employees Cabading and Haff
effectively resigned from Respondent by transmitting their
unequivocal resignation requests to the Respondent. "It is
now well established that where 'there is no evidence that
the employees . .. either knew of or had consented to any
limitation on their right to resign' union members are free
to resign at will .... "12 Here, Respondent notified
Cabading and Haff that the contractual union-security
provisions precluded Respondent from accepting their
resignation requests. The record fails to establish that the
employees here either knew of or consented to this
limitation on their right to resign. Under the circumstances
the employees were free to resign at will.1 3 In any event,
assuming arguendo the employees either knew of or had
consented to this limitation on their right to resign, I would
still conclude that they were privileged to resign at will
where, as here, any justification for the limitation imposed
on the employees' right to resign is far outweighed by the
extent to which said limitation conflicts with the policies of
the Act. See generally Scofield v. N.L.R.B., 394 U.S. 423,
431 (1969). Respondent's use of the contractual union-shop
proviso to restrict the right of employees to resign from full
union membership frustrates the statutory policy of
whittling "membership," as that term is used in contractual
union-security provisions, down to its financial core.
General Motors Corp. v. N.L.R.B., supra. Respondent has
12 Local 1384, UAW (Ex-Cell-O Corporation), 227 NLRB 1045, 1048
(1977),citing Booster Lodge No. 405, Intl. Assn. of Machinists and Aerospace
Workers v. N.LR.B.. 412 U.S. 84, 87-88 (1973), and 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, 217-218(1972).
':' Respondent's bylaws establish a procedure for the processing of
resignation applications and provides that a member shall have the right to
advanced no reason whatsoever for its necessity of
imposing a rule wherein employees who are meeting their
financial obligation imposed by the contractual union-shop
proviso are precluded, for the duration of the contractual
union-shop proviso, from resigning their full "member-
ship" in Respondent. Indeed, it is highly doubtful whether
this rule, which was the reason Respondent gave to
Cabading and Haff for rejecting their resignation requests,
is a bona fide rule of Respondent inasmuch as it conflicts
with the provision in Respondent's bylaws which in effect
states that members have the right to resign within at least
90 days from the date they submit a resignation request. I
find, accordingly, that, whether or not the employees knew
of or had consented to Respondent's limitation of their
right to resign, the provisions of the contractual union-
security proviso did not constitute a bar to the employees'
resignations involved herein; thus, the employees effective-
ly resigned their membership. Cf. Marlin Rockwell Corpora-
tion, 114 NLRB 553, 558-560 (1955).
I conclude, however, even though employees Cabading
and Haff effectively resigned their membership, that
Respondent did not violate Section 8(b)(1)(A) of the Act
by refusing to permit them to resign their membership. I
realize that when union members effectively resign from,
and thereby terminate, their contract of membership with a
union, they reacquire the full measure of their Section 7
right to refrain from concerted activities. In this circum-
stance, for a union to discipline the former members
because they fail to support the union after their resigna-
tion, restrains or coerces the employees in the exercise of
that Section 7 right, without serving any legitimate union
interest, hence, it is violative of Section 8(b)(1)(A) of the
Act. E.g., N.L.R.B. v. Granite State Joint Board, supra
(nonmember fined for strike breaking); District Lodge No.
99 and Lodge No. 2139, IAM (General Electric Company),
194 NLRB 938, (1972) (nonmember fined and suspended
from union activities for 5 years for crossing a picket line).
The instant case, however, involves no act of discipline or
threat of discipline. Respondent has neither disciplined nor
threatened to do so if Cabading or Haff fail to support
Respondent, and the complaint does not charge Respon-
dent with this type of conduct. Rather, the complaint
alleges that Respondent's refusal to accept Cabading's and
Haffs resignation impermissibly restrained and coerced
them from exercising their statutory right to refrain from
engaging in union activity. The General Counsel argues
that there is an implicit threat of future action inherent in
Respondent's refusal to accept the resignations of Cabad-
ing and Haff which, like a fine or suspension from
membership, is coercive. In other words, the employees
may well feel that since Respondent has refused to
acknowledge the validity of their resignations it may
attempt to discipline them for exercising their Section 7
right to refrain from engaging in union activities. This is
sheer speculation. I find that the conduct of Respondent in
resign when his or her resignation application has been fully processed or 90
days after the submission by the member of said application, whichever
occurs first. The legality of this rule is not an issue in this proceeding
inasmuch as Respondent did not rely on it in denying the employees'
resignation requests. In any event, the record fails to establish that the
employees here either knew of or had consented to this limitation on their
right to resign.
332
UNITED STANFORD EMPLOYEES, LOCAL 680
notifying Cabading and Haff that their requests for
resignation were rejected does not, by itself, constitute
restraint or coercion under Section 8(b)()(A) of the Act.' 4
Accordingly, I shall recommend that this portion of the
complaint be dismissed.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
In recommending an order remedying the unfair labor
practices found herein, I have considered Respondent's
contention that the practices have been in part remedied
and in whole rendered meaningless by subsequent conduct,
thus, no remedy is warranted. Specifically, the unlawful
lawsuit was dismissed with prejudice by the court, at the
request of Respondent, and in their successor collective-
bargaining agreement Respondent and the Employer have
agreed that the term "membership" as used in the union-
shop proviso means only the obligation of the employees to
tender periodic dues, thus making it highly unlikely that in
the administration of the union-shop proviso Respondent
will ever again be inclined to notify employees they are
required to become in effect "full members" of Respon-
dent. On the other hand, the unfair labor practices found
herein cannot be fairly characterized as minimal or
insubstantial or isolated or mere technical violations of the
statute. Respondent, for a period of several months,
violated Section 8(b)(1)(A) by telling employees they were
required to do more than pay union dues and that,
pursuant to the contractual union-shop provision, they
were required to in effect become and remain "full
members" of Respondent and, in the case of those
employees who refused to comply with this requirement,
Respondent filed a lawsuit, in violation of Section
8(b)(l)(A), to compel them to become "full members" of
Respondent. Considering the substantial nature of the
unfair labor practices and the fact that the current
collective-bargaining agreement still contains a union-shop
provision worded in the identical language as the one in
effect during the time material herein, I am persuaded, on
balance, that the remedial policies of the Act are best
effectuated by a cease-and-desist order which imposes
upon Respondent a continuing obligation to observe the
requirements of the Act and not to engage again in the type
of unlawful conduct resorted to herein.
CONCLUSIONS OF LAW
1. The Employer, The Leland Stanford Junior Univer-
sity, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
14 I am not called upon to decide whether a union's refusal to accept an
employee's valid resignation constitutes impermissible restraint or coercion
if, at the same time, the union illegally disciplines the employee for engaging
in postresignation conduct.
1' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions and recommended Order herein shall, as provided in Sec.
2. The Respondent, United Stanford Employees, Local
680, Service Employees International Union, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By notifying employees they are required to fill out
Respondent's membership application card and to take
Respondent's oath of membership, Respondent has en-
gaged in unfair labor practices within the meaning of
Section 8(b)(X)(A) of the Act.
4. By instituting and maintaining a lawsuit against
employees Charles Hall, Lupe Del Real, and Ed Bartal, for
the object of compelling them to sign Respondent's articles
of membership and do all other acts necessary to join and
maintain proper membership in Respondent, Respondent
has engaged in unfair labor practices within the meaning of
Section 8(b)(I)(A) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER 15
The Respondent, United Stanford Employees, Local 680,
Service Employees International Union, AFL-CIO. its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Enforcing the union-security provisions of its
collective-bargaining agreement with The Leland Stanford
Junior University by notifying employees of this Employer
that they are required to sign its membership application or
take its oath of membership or that they are required to
perform any obligation of union membership other than
the tender of the periodic dues and initiation fees
uniformly required as a condition of acquiring and
retaining membership in its Union.
(b) Enforcing the union-security provisions of its collec-
tive-bargaining agreement with The Leland Stanford
Junior University by instituting and maintaining a lawsuit
against employees of this Employer for an object of
compelling them to sign its articles of membership or to
compel them to perform any obligation of union member-
ship other than the tender of the periodic dues and
initiation fees uniformly required as a condition of
acquiring and retaining membership in its Union.
(c) In any like or related manner restraining or coercing
employees of The Leland Stanford Junior University in the
exercise of their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at Respondent's business offices and meeting
halls copies of the attached notice marked "Appendix." mi
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.
56 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted bs
Order of the National Labor Relations Board" shall read "Posted Pursuant
(Continuedl
333
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, to be furnished by the Regional
Director for Region 20, shall, after being duly signed by
Respondent's representative, be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for Region 20 signed
copies of the aforementioned notice for posting by the
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
Employer, if it is willing, in places where notices to
employees are customarily posted. Copies of said notice, to
be furnished by the aforesaid Regional Director, shall, after
being signed by Respondent as indicated, be returned
forthwith to the Regional Director.
(c) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps it has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint be, and
hereby is, dismissed insofar as it alleges violations of the
Act not specifically found herein.
334