Teamsters Local Union No. 579

National Labor Relations Board - Board Decisions

Mar 31, 1987

283 N.L.R.B. 548 (N.L.R.B. 1987)

548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Teamsters Local Union No. 579, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and -Helpers of America
(LC.L. Transit Company) and Robert B. Fisch-
bach. Case 30-CB-2403
31 March 1987
DECISION AND ORDER
BY MEMBERS BABSON, STEPHENS, AND
CRACRAFT
On 10 December 1986 Administrative Law
Judge Benjamin Schlesinger issued the attached de-
cision. The-General Counsel. filed exceptions- and a
supporting brief, and the Respondent filed cross-ex-
ceptions and a brief in opposition to the General
Counsel's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in fight of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions as modified2 and to adopt the recom-
mended Order.
I
The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 In concluding that the complaint should be dismissed , we rely solely
on the judge's conclusion that the Respondent 's refusal to issue Fischbach
a withdrawal card did not violate Sec. 8 (b)(1)(A) of the Act, and find it
unnecessary to decide whether the complaint is time -barred by Sec.
10(b). We agree with the judge that Teamsters Local 579 (Northern con-
veyor), 274 NLRB 100 (1985), is distinguishable from the instant situation.
In that case, the Board found that the Respondent's discipline of an indi-
vidual, who had obtained a withdrawal card , for crossing a picket line
violated Sec . 8(b)(1)(A). In so finding, the Board noted , inter alia, that
the language of the Respondent's withdrawal card and its bylaws on its
face equated withdrawal status with resignation , that nothing in the
bylaws or card informed an employee on withdrawal status of possible
discipline for crossing a picket line, and that any ambiguity created in this
situation was construed against the Union. Northern Conveyor did not
find, however, that an employee on withdrawal status was, in fact, in all
situations to be considered a resigned employee. It found , rather, that
when certain union documents appeared to equate withdrawal with resig-
nation and could reasonably lead an employee on withdrawal status to
believe that he could cross a picket line free from union discipline, then
any ambiguity whether the union might lawfully discipline the employee
for engaging in such conduct subsequent to withdrawal would be re-
solved against the union, the author of the documents. But here there is
no ambiguity and Fischbach did not rely on the language in the docu-
ments to his detriment . He was simply denied a withdrawal card; he was
not denied the opportunity to resign . Indeed, in seeking the withdrawal
card he had no intention of resigning . He wanted the card so that he
could work in another locality and join another local of the International
without paying a new initiation fee. We find no Sec . 7 rights were re-
strained by the Respondent 's refusal to give him such a card . In sum, we
find the Respondent's actions did not violate Sec. 8(b)(1)(A).
ORDER
The National Labor Relations Board adopts the
recommended order of the administrative law
judge and the complaint is dismissed.
Paul Bosanao Esq., for the General Counsel.
Frederick Perillo, Esq. (Goldberg, Previan4 Uelmen, Gratz
Miller & Brueggeman, S.C.), of Milwaukee, Wisconsin,
for Respondent.
Robert B. Fischbach, of Gages Lake, Illinois, Charging
Party, pro se.
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAw
BENJAMIN SCHLESINGER , Administrative Law Judge.
Charging Party Robert B. Fischbach attempted to obtain
a withdrawal card from his union, Respondent Teamsters
Local Union No. 579, affiliated with the International
Brotherhood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America . t Respondent's refusal to give him
one prompted the issuance of a complaint alleging that
Respondent violated Section 8(b)(1)(A) of the National
Labor Relations Act, 29 U.S.C. § 151 et seq.2
Jurisdiction is conceded . Fischbach was employed by
L.C.L. Transit Company (Employer), which is an inter-
state freight carrier in Elkhorn , Wisconsin. During the
year preceding 20 February 1986 , the Employer derived
gross revenues in excess of $50 ,000 from the transporta-
tion of freight and commodities from Wisconsin to points
located outside Wisconsin . I conclude, as Respondent
admits , that the Employer is an employer engaged in
interstate commerce within the meaning of Section 2(2),
(6), and (7) of the Act. I also conclude , as Respondent
admits, that Respondent is a labor organization within
the meaning of Section 2(5) of the Act.
The Essence of the Dispute
Fischbach had been a member of Respondent from 6
February 1973 and had served as a steward from 1979-
1984. On 1 August 1984 he engaged in an argument with
Brendan Kaiser, Respondent's secretary-treasurer and
business agent , about the transfer of coverage of medical
benefits to a different insurance carrier, causing Fisch-
bach to pay more for dental care for his daughter. Fisch-
bach also complained that the officers of another local of
the International had "robbed" him of 3 years of pension
credit with one of his former employers. The argument
became heated; Fischbach lost his temper and, among
other things, he charged that "all Teamsters are crooked
bastards," and he told Kaiser in vile terms where he
could put his "fucking insurance."
Just as Fischbach lost his temper, so did Kaiser, who
sent a letter to all the Employer's employees about 2
August 1984, complaining of Fischbach's defamatory
statements ; advising the employees to quit their jobs and
i The caption of this proceeding was amended at the hearing.
2 The relevant docket entries are as follows. The unfair labor practice
charge was filed 26 September 1985, the complaint issued 20 February
1986; and the hearing was held in Janesville, Wisconsin, 11 June 1986.
283 NLRB No. 80
TEAMSTERS LOCAL 579 (L.C.L. TRANSIT)
find out what it was like to work in a nonwork shop
("The bitchers won't have a complaint about health in-
surance, the-changing of health insurance, pension plans,
etc., because -there won't be any, and if there is any, it
will be solely at the discretion of the Employer"); and
accusing Fischbach of making "derogatory, disrespectful
remarks about me, my predecessors and other Local
Union officials where he had been a Teamster member,"
of being insubordinate, and of, failing to "render full alle-
giance," in violation of Respondent's bylaws.
Kaiser asked the employees to choose - between Re-
spondent and Fischbach. If ,the majority of employees
was dissatisfied with Respondent, it would file a dis-
claimer of representation with the Board. ("This will
remove the Union from the obligation to represent you.
Yes, you will be without a union, a contract, a health in-
surance plan that you now are in (paid for by the Com-
pany), and a pension plan.") "After that you are on your
own,"' he wrote, or the employees could "[f]ile charges
against the dissident members for violation,of the Team-
sters Local Union No. 579 By-Laws and the Internation-
al Brotherhood of Teamsters Constitution, Article 19." If
they 'are found quilty, they can be "reprimanded, fined,
suspended for a period of time or expulsion"'; and
"[w]ithout membership either through suspension or ex-
pulsion the member is unable to work ... on this job
because" the Employer could employ only Respondent's
members.
So the choice, Kaiser wrote, was up to the employees:
If the majority are pleased with the way your
Local Union has represented you, then I suggest
that you reply as previously requested. Further, that
if the majority is ' satisfied then I suggest that you
talk to the dissidents 'and urge them to make written
retraction and apologize to the Secretary-Treasurer
of this Local Union. If the dissidents fail to take this
opportunity; there will be charges filed against the
problem members.
On receipt of this letter, Fischbach called Kaiser
twice, but Kaiser failed 'to answer his calls. Fischbach
then retained an attorney, William A. Pangman, who, on
8 October 1984, with Fischbach, filed internal union
charges against Kaiser for his alleged interference with
Fischbach's right to "express any views, arguments, or
opinions," as guaranteed by Respondent's bylaws and the
Landrum-Griffm Act. Kaiser `countered with his own in-
ternal union charges against Fischbach, dated 10 October
1984, alleging that he was "disrespectful in words and
actions" to Kaiser and made "defamatory statements."
A number of the Employer's employees grew, weary
of this dispute and requested Kaiser to come to the Em-
ployer's premises and resolve his differences with Fisch-
bach. Kaiser came about 12 November and met with
Fischbach, who said that; he was contemplating another
job in Illinois, that he "would get out of [Kaiser's] hair
[and] settle our differences so [Fischbach] could, have
[his] 'withdrawal ;card." Kaiser said that Fischbach did
not have to leave and that the dispute could be resolved
549
if he would write an apology, As a result, Fischbach sent
the following letter to Kaiser that evening:
This is a letter of apology to Brendan F. Kaiser and
Teamsters Local Union No. 579, the board of direc-
tors and other brothers members of the Union,
Local Number 200, Southeast area pension, fund for
any disrespectful words and action that l[ had said.
There will be no more in the future.
That apology, handwritten by Fischbach' s daughter,
but signed by Fischbach, did not satisfy Kaiser, who
wrote Fischbach on 18 December 1984, as follows:
I am writing you in response to the Executive
Baord of Teamsters Local Union No. 579 position
on December 15, 1984.
The Executive Board agreed with my request to re-
scind and expunge the pending charges if the fol-
lowing steps are followed without exception:
1. That a typed, letter, which is notarized, from you
to Teamsters Local Union No. 579 making the
same apology as you did in the handwritten one.
(Copy enclosed.
2. That a letter of retraction and apology is sent to
Teamsters "General" Local No. 200's Secretary-
Treasurer, Raymond "Red" Fularczyk, typed and
notarized by you.
3. That a letter of retraction and apology of any
misstatements (because of lack of facts) by you
about the Central States, Southeast and Southwest
Areas Pension Fund be sent to the Fund, typed
and notarized by you.
4.1 That your attorney, Pangman, send a letter of re-
traction on the charges against Secretary-Treasur-
er Brendan F. Kaiser to Secretary-Treasurer Bren-
dan F. Kaiser and to Joint Council No. 39 Secre-
tary-Treasurer Raymond "Red" Fularczyk, and
that the case is settled.
5. A ,carbon copy of all correspondence sent to all
of the above-mentioned parties also to be' sent to
Teamsters -Local Union No. 579 Secretary-Treas-
urer Brendan F. Kaiser.
6. Upon receipt of all requested, correspondence Sec-
retary-Treasurer Brendan F. Kaiser will rescind
and expunge all charges against Brother Robert
Fischbach.
We all must work together with due,respect for
each other, in order for our organization to survive
the elements of today.
On receipt, Fischbach telephoned Kaiser and com-
plained that his letter did not reflect what Kaiser had
previously asked Fischbach to write. Fischbach said that
he'had carried out his part of the agreement and Kaiser
had reneged. Fischbach further stated that he had al-
ready obtained his job in Illinois, that he was leaving,
and that he refused to engage in any more writing or ar-
guing . In the first week of January 1985; he gave notice
3 All dates hereafter refer to the year 1985, unless otherwise stated.
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to the Employer that his last day of employment would
be 15 February. On 28 January, Fischbach went to the
credit union, withdrew his money, and closed his ac-
count; and then went next door to the Respondent's
office and asked for the forms necessary to obtain a
withdrawal card. After he filled them out, Kaiser walked
by. Fischbach told him that he was leaving and had just
completed the application for a withdrawal card. Kaiser
said that the card was not going to be given to him be-
cause "you didn't do what I said," and because Fisch-
bach was still employed and was not eligible for with-
drawal until he left his employment.
On 16 February, Fischbach mailed the following letter
to Respondent:
This is a formal request for my withdrawal card
from Local 579. It was denied by you and I was
also told by my steward, Bob Achilli, that you
would not, give it to me. My request was filled out
in January, 1985, in writing and my dues are paid to
date in full.
He received no reply; indeed, Kaiser denied that he ever
received it. Fischbach then retained Pangman to obtain
the withdrawal card. Pangman called Kaiser on 4 June
and told him that Fischbach was no longer working for
the Employer, that he had received notices, about arrear-
ages of dues,4 and that he was entitled to receive his
withdrawal card. Kaiser replied that Fischbach knew
what he had to do, that it was all set forth in his letter of
18 December. Pangman said that he had understood that
Fischbach had already apologized and had delivered his
request for a withdrawal card. Kaiser said that he would
forward to Pangman the 18 December 1984 letter. Kaiser
did so on 10 June, stating in an accompanying letter that
Fischbach had filled out a withdrawal card application
while employed by the Employer and that., "He was in-
formed that he could not get a withdrawal card while
being employed and would not be given a withdrawal
card until he complied with the 12-18-84 disposition on
his membership with the pending charges." Kaiser reaf-
firmed that he had not received any timely withdrawal
request and further stated; "When Mr. Fischbach com-
plies as requested and pays his dues up through the
month in which he complies with clearing his member-
ship status, and makes proper application for a withdraw-
al card, at that time he will be issued a withdrawal card
from" Respondent.5
An Explanation of Certain Credibility Findings
When Fischbach applied for a withdrawal card on 28
January, his application was premature under the Inter-
national's constitution, which mandated that the card
could be granted only to a memeber who was no longer
employed. Fischbach testified that on 28 January Kaiser
4 Under date of 22 May, the Union sent a form letter to Fischbach
confirming that he had paid dues through March; stating that he was in
arrears for April and May, and that, if he had terminated his employ-
ment, he should request a withdrawal card ; and notifying hun that "Dues
must be paid through the month that you request a withdrawal card in."
b There is no question that Fischbach's dues were paid only through
March.
told him only that the card was being denied because he
did not apologize as he requested in the 18 December
1984 letter. In my findings above, I have discredited
Fischbach's testimony, finding that Fischbach, although
truthful and credible, recalled many incidents in general-
ities, whereas Kaiser had a thorough and believable
recall of the details of his confrontations with Fischbach.
Furthermore, I find that Fischbach sent the February
letter to Respondent formally requesting a withdrawal
card only as a result of Kaiser's advice on 28 January
that Fischbach could obtain a withdrawal card only
when he ceased his employment, and that Fischbach was
advised further that he had to pay his dues to the date of
that application (as required by Respondent's bylaws and
the International 's constitution). Otherwise , there , appears
to be no reason that would have prompted Fischbach to
send the letter in February, after he had quit his employ-
ment, and to specifically mention in the letter that his
dues had been fully paid.
It also appears that Respondent was put on notice that
Fischbach planned to quit, his employment on 15 Febru-
ary; and the question is whether Respondent should have
delayed the granting of his application until 16 February,
'without any further written notice by Fischbach. Indeed,
Respondent could have, checked with the Employer to
ensure that Fischbach' had in fact left the Employer's
employ, as, he said he was going to, and, on validating
Fischbach's claim, issued the desired card. If there had
been no further communications in this proceeding, and
if the unfair labor practice charge herein had been timely
filed, there might be justification to hold that Fischbach's
application of 28 January sufficed and put the Union on
notice that he was quitting on 15 February and that the
withdrawal card was to be issued when he quit.
In any event, I am persuaded that Fischbach sent a
followup letter on 16 February renewing his request of
28 January. I reject Kaiser's testimony that Respondent
did not receive that ' letter. I find that Kaiser's personal
animosity to Fischbach affected his truthfulness. Con-
trary to his statements and letters, Kaiser testified that
Fischbach would not have had to apologize to obtain his
card, to wit: "I couldn't have withheld a withdrawal
card from him if he had come [sic] in and followed the
procedures. We wanted this [apology] in our files be-
cause he promised us he would do that" and "We
wanted that but we couldn't have held him to that." I
find this belated explanation false. Kaiser was irrationally
impelled to deny Fischbach his rights and was willing to
do anything in order to- avoid giving out a; withdrawal
card to one who, he believed, had impugned his integrity
and the integrity of his organization.
I, therefore, find that he tailored his testimony to deny
receipt of Fischbach's February, letter. I reject Respond-
ent's claim that Fischbach did not prepare the letter and
did not send it. As stated above, I found Fischbach sin-
cere, candid, and believable. The,letter is consistent with
Kaiser's earlier advice to Fischbach that the 28 January
application was untimely and that the application had to
be made only after Fischbach. had left his employment.
In light of his numerous other requests to obtain the
withdrawal card, there is no cogent reason Fischbach
TEAMSTERS LOCAL 579 (L.C.L. TRANSIT) 551
should have attempted to prepare the February letter as
a ruse to prove that he did apply for a withdrawal card.
The lack of Respondent's address on the letter is of no
consequence. Clearly, Fischbach knew the address, as
shown on all the other' correspondence introduced in this
proceeding. Indeed,' Fischbach visited Respondent's
office on 28 January, as Kaiser conceded. Surely, Fisch-
bach knew Respondent's address, and I credit his testi-
mony that he addressed the envelope containing the Feb-
ruary letter and sent it to Respondent.
Discussion of the Applicable Law
The -General Counsel's argument in favor of finding a
violation relies on a prior Board decision involving Re-
spondent and is succinct:
The proviso to Section 8(b)(1)(A) of the Act
states that a labor organization shall have the right
.. to prescribe its own rules with respect to the
acquisition or retention of membership ...' . " Not-
withstanding the 8 (b)(1)(A) proviso, the Supreme
Court in Patternmakers League v. NLRB, 119
LRRM 2928 (1985), held that a labor organization
could not fine individuals , who tendered their resig-
nations during a strike and returned to work , pursu-
ant- to a rule restricting the right to resign from
membership . In Machinists Local 1414 (Neufeld
Porsche Audi), 270 NLRB 1330 (1984), the Board
held that any -restrictions placed by a union on its
members ' right to resign are unlawful.
[T]he Board has held that Respondent's by-laws
and its International's constitution contain provi-
sions which render a withdrawal tantamount to a
resignation . Teamsters Local No. 579 (Northern Con-
veyor Manufacturing Corporation), 274 NLRB 100
(1985), fn . 1.... Accordingly, since - it has been
found that , as written, Respondent's by-laws and
the International's constitution equate withdrawal
status with resignation, any restrictions Respondent
placed on a member's right to withdraw must be
considered in light of the rules governing a mem-
ber's right to 'resign.
In his letter to 'Pangman, dated - June 10, 1985,
Kaiser states Fischbach was told he would not
obtain a withdrawal card until he complied with'the
demands of the December 18, 1984 letter , at which
time the pending ' charges would be dropped. In
Sheet Metal Workers Local 73 (Safe Air, Inc.), 274
NLRB 374 (1985), the Board held that the mere
maintenance of a constitutional provision that, inter
alia, prohibited resignation during the pendency of
internal charges was unlawful. Therefore , Respond-
ent's reasons for refusing - Fischbach's request for a
withdrawal card , i.e., the pendency of internal
'union charges , and failure to comply with the De-
cember 18 , 1984 letter, are unlawful . Additionally,
Kaiser's insistence that Fischbach pay his dues
through the month in which he requested a with-
drawal card would also run afoul of the Board's
ruling that Respondent can' place no restrictions on
.the right to resign. Machinists Local Lodge 1414,
supra. Thus, Respondent cannot insist on any dues
payment as a condition to obtaining a withdrawal
card.
In Teamsters Local .579 (Northern Conveyor), 274
NLRB 100 (1985), Respondent fined a member who had
previously withdrawn from Respondent for crossing Re-
spondent's picket line. The member claimed that he
should not have been subject to discipline because he
was not a "card-carrying member" and did not feel that
he "belonged to the union, because [he] was on a with-
drawal status." The Board agreed, stating in footnote 1:
In agreeing with the judge that the Union unlaw-
fully disciplined Vierck, we rely solely on the lan-
guage on the withdrawal card and the Union's
bylaws which on its face equated withdrawal status
with resignation . The withdrawal card obtained by
Vierck stated that the holder "has withdrawn in
good standing from membership" and refers to an
individual on withdrawal status as an "ex-member."
Similarly, the union bylaws state that a member
who obtains a withdrawal card "shall be considered
to have voluntarily withdrawn from membership in
the Local Union." `
Nothing in either the bylaws or on the card in-
formed an employee on withdrawal status of possi-
ble discipline for crossing a picket line and, in fact,
the language in the bylaws and card could reason-
ably lead Vierck to believe that he could cross the
picket line without being disciplined by the Union.
Any ambiguity created in this situation is construed
against the Union. Accordingly, we find that by dis-
ciplining Vierck, the Union violated Sec. 8(b)(l)(A)
of the Act.
Accordingly, -for the purposes of determining the right
of a withdrawn member to cross a-picket line, the Board
held that a member had such a right and could not be
fined or threatened with a -fine, especially, because "the
language of the withdrawal card and the Union"s bylaws
... equated withdrawal status with resignation" and the
member was "reasonably [led] to believe that he could
cross the picket line without being disciplined by .. .
the Union." But the instant proceeding, is neither a union
discipline case nor a proceeding involving a constitution-
al clause limiting the right of a union member to resign
nor a proceeding involving a member's resignation from
a union. It is a case involving Fischbach's request for a
withdrawal card, not for the purpose of -crossing a picket
line, but to transfer at some future time to another affili-
ate of the International.
It should be clear, by now how the Board regards a
union member's right to resign. Section 7 of the Act
grants an employee the right to refrain,from union activi
ty. Anything that interferes with or restricts that right is
illegal, except for a lawful union-security provision.
'Thus, the cases cited by the General Counsel demon-
strate that a labor organization may not discipline a re-
signed member- or otherwise restrict the right to resign
from membership in any way by limiting that right to
certain periods of time, such as "if offered in anticipation
of charges being preferred against ' [the nnember], during
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the pendency of any such charges or during a strike or
lockout." Sheet Metal Workers Local 73 (Safe Air), 274
NLRB 374 (1985).
There is, however, no statutory provision which re-
quires a labor organization to grant to a member the
privilege of obtaining a withdrawal card. There is no
statutory provision which requires a labor organization
to charge no initiation fees to a former member who re-
signed from the union. The granting of a withdrawal
card by Respondent permits a member to sever his or
her relationship with the Respondent-to pay no dues
and receive no benefits or rights as a fully paid
member-and to rejoin as a full member without paying
the $100 initiation fee required of other employees, but
previously paid by the "withdrawn" member.
The' Board held in Northern Conveyor only that the
withdrawal card and Respondent's bylaws "equated
withdrawal status with resignation." It did not hold that
an application for a withdrawal card was the same as a
resignation . Furthermore, the Board found a violation in
Northern Conveyor only,because the member was reason-
ably` led to believe that his crossing of a picket line
would not lead to discipline.6 But Fischbach was sub-
jected to no misunderstanding. He did not intend to
resign . Cf. Machinists Local 758 `(Menasco, Inc.), 275
NLRB 755 fn. 15 (1985), and accompanying text. He de-
sired to obtain a withdrawal card so that he could work
in Illinois and join another local, of the International
without paying a new initiation fee. Nominally, of
course, by obtaining a withdrawal card, Fischbach
would lose essentially all of his rights as a member of
Respondent, but he would maintain the right of not
being required to pay an initiation fee a second time.
In granting him that right, Respondent may, pursuant
to the proviso in Section 8(b)(1XA), enact rules with
regard to the retention of membership under a with-
drawn status. Respondent contends that it is reasonable
to enact a rule not to grant a withdrawal card to one
who is still working. I agree . The fundamental basis for
withdrawing from a local labor organization is that the
employee is no longer working within the local' s juris-
diction. Otherwise, the employee can continue to work
while-' being listed as a withdrawn member and not being
liable to pay dues to the union. There may be some justi-
fication for Respondent not to permit a member to take
advantage of its benevolent practice of granting with-
drawal cards when the member is subject to internal
union discipline. But, whether reasonable or not is not
for the Board to judge. Under the Act, Congress has left
to Respondent the right to adopt rules regarding the re-
tention, of membership; and as long as there has been no
contention by the General Counsel, no less showing, that
6 No fording was made by the Board that any provision of the Union's
bylaws or International 's constitution was unlawful on its face . In Safe
Air, decided by the Board '11 days after it decided Northern Conveyor, the
Board ordered expunged constitutional provisions which restricted the
right to resign The Board did not do so in Northern -Conveyor and the
complaint herein does not allege that any provision of Respondent's
bylaws or the International 's constitution is unlawful on its face.
Section 7 rights were restrained or coerced, that should
end this matter.7
There is, however, one other point that ought to be
considered, that is, Respondent's contention that the in-
stant proceeding is barred by Section 10(b) of 'the Act. I
have found above that Fischbach was denied a with-
drawal card on 28 January. Further, his renewal of the
application for the card on 16 February was not respond-
ed to, which may be understood as, yet another denial.
Both those dates were more than 6 months prior to the
date, 26 September, when the unfair labor practice was
filed. The General Counsel argues that the denial was a
continuing violation and the denial was renewed by
Pangman on 4 June and reaffirmed by Kaiser on 10 June.
I have reviewed all the authorities cited by the parties
and find indistinguishable Roofers Local 106 (Midwest
Roofing), 202 NLRB 851 (1973), in which a union
member was expelled from the union prior to the appli-
cable 10(b) period, but applied for membership within
the statutory period, and the application was - denied
based on the earlier and allegedly unlawful expulsion.
The Board reversed the administrative law judge's find-
ing that the charge was timely:
We do not adopt the Administrative Law Judge's
conclusion with respect to Respondent's refusal to
readmit [the employee] to union membership. How-
ever illegal Respondent's initial expulsion of [the
employee] from membership may have been, that
occurred ... far beyond the 10(b) period. No
timely charge was filed with respect thereto. The
Charging Party may not nullify the effects of the
10(b) bar by thereafter reapplying for membership,
and then filing a charge based on Respondent's
more recent action, since this action was in essence
merely a reaffirmation of Respondent's earlier, time-
barred conduct. We therefore ford no violation in
Respondent's refusal to, admit [the employee] to
membership.
Fischbach has done almost the very same thing.
Denied a withdrawal card in January and February, he
should have filed a charge in July, or possibly August,
because his dues were paid up in February. He -did not
and instead contacted Pangman who asked Kaiser in
June why he had refused to grant Fischbach his with-
drawal card in January and February. Kaiser, answered
with the same reasons he had previously given. Pang-
man's June request was merely a renewal, of Fischbach's
requests made - earlier in the year. To paraphrase the
Board's language quoted above, Kaiser merely reaf-
firmed Respondent's earlier, time-barred conduct, and
Fischbach may not nullify the effects of the 10(b) bar by
reapplying for the withdrawal card and questioning the
earlier, time-barred refusals. Accordingly, even if I had
found that the Union violated the Act by its conduct in
January and February, Section 10(b) bars the, finding of
' Of course, although it may be argued that Kaiser's actions were rep-
rehensible, the Board is not the adjudicator of Fischbach's rights under
Respondent 's bylaws or under the free speech provisions of the Lan-
drum-Griffin Act.
TEAMSTERS LOCAL 579 (L.C.L. TRANSIT) 553
any violation. Teamsters Local 595 (Certified Grocers),
218 NLRB 1286 (1975).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
eds
ORDER
The complaint is dismissed.
s If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended Board and all objections to them shall be deemed waived for all pur-
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the poses.