The International Brotherhood Of Teamsters, Chauffeurs, Warehousemen And Helpers Of America (Northern Conveyor Manufacturing Corp.)

National Labor Relations Board - Board Decisions

Feb 15, 1985

274 N.L.R.B. 100 (N.L.R.B. 1985)

100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Drivers , Dairy Employees and Helpers
Local Union No. 579, a/w the International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America (Northern
Conveyor Manufacturing Corporation ) and Ken-
neth W. Vierck. Case 30-CB-2032
15 February 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 15 August 1984 Administrative Law Judge
Thomas E. Bracken issued the attached decision.
The Union filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, General
Drivers, Dairy Employees and Helpers Local
Union No. 579, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and, Helpers of America, Janesville, Wiscon-
sin, its officers, agents, and representatives, shall
take the action set forth in the Order.
of the Act, by threatening to fine Vierck because he had
crossed a picket line, and by conducting a disciplinary
hearing against, and fining, Vierck for crossing a picket
line, notwithstanding that at a time prior to Vierck's re-
fusal to respect the picket line, he had withdrawn from
membership in Respondent Union. Respondent admits
that Vierck had taken a withdrawal card from the Union
prior to crossing its picket line, but denies that the taking
of such constitutes a resignation from the Union, and
that since Vierck was still a member of the Union, he
was subject to the disciplinary procedures contained in
its constitution and bylaws.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Union, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Northern Conveyor Manufacturing Corporation, an
employer of the Charging Party during a relevant
period, manufactures and fabricates conveyors at its
plant in Janesville, Wisconsin. During the preceding cal-
endar year, it sold and shipped from this plant products
and materials valued in excess of $50,000 directly to
points located outside the State. Respondent admits and I
find that the Company (Northern Conveyor) is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
' In agreeing with the judge that the Union unlawfully disciplined
Vierck, we rely solely on the language on the withdrawal card and the
Union's bylaws which on its face equated withdrawal status with resigna-
tion . The, withdrawal card obtained by Vierck stated that the holder "has
withdrawn in good standing from membership" and refers to an i ndivid-
ual 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 informed an employee on
withdrawal status of possible discipline for crossing a picket line and, in
fact, the language in the bylaws and card could reasonably 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 disciplining Vierck, the Union
violated Sec 8(b)(1)(A) of the Act
DECISION
STATEMENT OF THE CASE
THOMAS E BRACKEN, Administrative Law Judge.
This case was tried at Milwaukee, Wisconsin, August 26,
1983. The charge was filed by Kenneth W. Vierck, an
individual, on January 19, 1983, and the complaint was
issued June 8, 1983. The complaint alleges that Respond-
ent (Local 579 or the Union)' violated Section 8(b)(1)(A)
' The charge, the complaint , and Respondent's answer all set forth the
name of Respondent as General Drivers, Dairy Employees and Helpers
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background2
Local 579, with its office in Janesville, Wisconsin, is an
affilated local of the International Brotherhood of Team-
sters. Its internal affairs are governed by the constitution
of the International Union, Jt. Exh. 1, and its own
bylaws, Jt. Exh 2. It has approximately 1500 members
covered by some 90 contracts with employers who
engage in a wide range of industries. At all times materi-
al to this case, Brendan F. Kaiser was the secretary-
treasurer and principal officer of Local 579. Other full-
time employees of the Local were Marvin Lewis, presi-
dent, Harley French, organizer, and two office employ-
ees.
In the late 1960s or early 1970s the Union had orga-
nized Northern Conveyor representing its production
and maintenance employees. One such employee was
Union Local No 579 The bylaws of Respondent, Jt Exh 2, set forth the
name as General Drivers, Dairy Employees and Helpers Local Union
No 579, as does the stationery of Local 579 in R Exhs 3 and 8 On my
own motion I have changed the name of the Respondent to that set forth
in its bylaws
2 The material facts giving rise to the legal issues presented herein are
not in dispute , except for one incident which will be resolved at the ap-
propriate place
274 NLRB No. 22
TEAMSTERS LOCAL 579 (NORTHERN CONVEYOR)
Vierck, who began his employment with Northern Con-
veyor in August 1979, as a welder. At that time, North-
ern Conveyor had approximately 35 employees. Vierck
became a member of Local 579 by signing a printed
membership application (R. Exh. 1). This printed form
stated, among other things, that the signer agreed to
abide by the constitution of the International , and the
Local Union bylaws, and that the signer pledged "to
comply with all the rules and regulations" of the Interna-
tional and the Local Union. Vierck testified that he
could not say for sure whether he read the document or
not, but admitted that he usually does not sign docu-
ments without reading them.
Vierck became a member of Local 579 in September
1979, after completing a 30-day probationary period.
Under the terms of the parties' collective -bargaining
agreement , an initiation fee of $100 was checked off by
the employer, and forwarded to the Union Vierck at-
tended no union meetings , but his monthly dues of $13
per month were checked off and regularly forwarded to
the Union. In November work started to slow down, and
Vierck was laid off on December 7, 1979. On this date
Vierck asked his foreman, Bill Teubert, if he thought the
layoff would be a long one. His supervisor advised him
that it looked like it was going to be a long one, "so that
we were to go pick up our withdrawal cards from the
union."
B. Withdrawal Card
The resolution of this case focuses sharply on the
withdrawal card issued by the Union to Vierck. To
better understand its legal implications, pertinent provi-
sions from article XVIII, section 5, of the International's
constitution are set forth below-
(a) When a member becomes unemployed in the
jurisdiction of the Local Union, he shall be issued
an honorable withdrawal card upon his request. If
no request is made, an honorable withdrawal card
must be issued six (6) months after the month in
which the member first becomes unemployed, if he
is still unemployed at that time
(b) A withdrawal card shall be issued to any
member, including a Local Union officer, who has
retired from employment at the craft. However, a
Local Union may provide in its Bylaws that retired
members who have been issued withdrawal cards
may continue as honorary members with the privi-
lege of attending meetings.
In any case where a Local Union is required to
give to a member an honorable withdrawal card
under the terms of the International Constitution
and its Bylaws, it may provide for the continuance
of Local Union benefits to such member or former
member under conditions which it may set forth,
but such member or former member shall not be
permitted to hold office or vote, and shall have
only such right to participate in the meetings and
the affairs of the Local Union as shall be uniformly
permitted by the Local Union Executive Board.
101
(c) There may be a maximum charge of fifty
cents (504) to any member issued a withdrawal, card
and it shall be the duty of the Secretary-Treasurer
of the Local Union receiving such charge duly to
record it in his ledger.
(d) Refusal or failure to grant an honorable with-
drawal card or issuing a withdrawal card in alleged
violation of this Constitution shall be subject to
appeal in accordance with the appeal procedure
provided for by this Constitution, excluding, how-
ever, any appeal to the Convention.
(f) The Local Union shall not charge an initiation
fee on the deposit of a withdrawal card
(g) To be eligible for a withdrawal card a
member must have paid to the Local Union issuing
the withdrawal card all dues and other financial ob-
ligations as a member, including dues for the month
in which the withdrawal card is effective.
The bylaws of Local 579 in its section 19 on member-
ship also contains several provisions relative to with-
drawal cards. These paragraphs are:
(C) Issuance of Withdrawal Cards
(1) A member who has been issued a withdrawal
card shall be considered to have voluntarily with-
drawn from membership in this Local Union A
member shall be considered transferred from this
Local Union upon acceptance of his transfer card
by another Local Union
(2) In any case where the Local Union is re-
quired to give to a member an honorable withdraw-
al card under the terms of the International Consti-
tution and these Bylaws, it may provide for the
continuance of Local Union benefits to such
member or former member under conditions which
it may set forth, but such members or former
member shall not be permitted to hold office or
vote, and shall have only such right to participate in
the meetings and affairs of the Local Union as shall
be permitted by the Local Union Executive Board
As to resignation from the Union, the bylaws provide
as follows:
(3) No member may resign from his membership
in this Local Union before he has paid all dues, as-
sessments, fines, and other obligations owing to the
Local Union, and no resignation shall become effec-
tive until such payment
The International constitution also provides for resig-
nation in its article II, section 2 as follows
(h) No member may resign from his membership
in the International Union or any subordinate body
before he has paid all dues, assessments, fines and
other obligations owing to the International Union
and all its subordinate bodies. A resignation must be
in writing to the Secretary-Treasurer of the Local
Union. After the Secretary-Treasurer has deter-
mined that the foregoing requirements have been
complied with, such resignation shall then be effec-
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive thirty (30) days after its receipt by the Secre-
tary-Treasurer. 3
Vierck originally testified that on the day of his layoff,
he drove to the union office in Janesville, and requested
a withdrawal card. The secretary checked the office
computer4 to see if his dues were paid up, and then re-
quested 50 cents for the card. Upon his paying the 50
cents, she typed in the blanks in the Local's standard
withdrawal card, gave it to Vierck, who put it in his ve-
hicle's glove compartment.
On cross-examination Vierck admitted that he was not
sure of the date that he went to secure the withdrawal
card. The computer printout records of the Union show
he paid 50 cents for a withdrawal card on February 4,
1980, and I so find. (R. Exh 5.) The same printout
shows that he paid $26 in cash, which Kaiser testified
was for January and February 1980 dues
The withdrawal card issued to Vierck was a 2-1/2 by
4-inch card printed on both sides, which reads as fol-
lows:
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF
AMERICA
HONORABLE WITHDRAWAL CARD
Pursuant to the provisions of Article XVIII, Sec-
tion 6 of the International Constitution , this is to
certify that the bearer hereof,
SSN (SIN)
WAS ISSUED AN Honorable Withdrawal Card on
and has paid all dues and demands
and has withdrawn in good standing from member-
ship in Local Union No . effective for
the month of . Given under our hands
and the seal of Local Union No.
(SEAL) this day of 19.
Secretary-Treasurer
President [over]
ARTICLE XVIII
Section 6(b). This card entitles him/her to read-
mission to the Local Union from which this card
was issued at any time, subject, however, to the
provisions of subsection (e) of this Section and pro-
vided the bearer has obtained employment at the
craft.
s The requirement that the resignation be in writing to not in accord
with the Board 's holding in United Autoworkers Local 1384 (Ex-Cell-O
Corp), 219 NLRB 729 (1975) The restrictive language contained in the
last sentence would appear to be in violation of the Board's recent hold-
ing that a union may not lawfully restrict the right of its members to
resign from membership Machinists Local 1414 (Neufeld Porsche-Audi),
270 NLRB 1330 (1984) Since the International Union is not a party to
the case herein, no further discussion is made relative to par (h)
4 The Local Union's computer is tied into the master unit which is lo-
cated at the International 's headquarters in Washington , D C It keeps all
financial data of each member up to date, concurrent with the punching
in of each financial transaction relating to that member
Section 6(c). Any member of a Local Union re-
fusing full-time employment when offered or leav-
ing employment within the jurisdiction or going to
work at another craft or occupation outside its ju-
risdiction on other than a temporary or part-time
basis shall be given an honorable withdrawal card
and cannot remain a member.
Section 6(d) Any ex-member out on a withdraw-
al card and desiring to return to membership, must
first deposit his/her withdrawal card with the Local
Union by which it was issued; and upon the with-
drawal card being accepted, the member shall be
subject to the rules and laws of the Local Union.
Refusal of any Local Union to accept a withdrawal
card shall be subject to appeal in accordance with
the appeal procedure provided for by his Constitu-
tion, excluding, however, any appeal to the Con-
vention.
Section 6(e). The Local Union must not accept a
withdrawal card if the ex-member has committed
any offense while out on withdrawal card which
would be injurious to union principles. Also, if the
Local Union is paying benefits and the ex-member
has fallen into bad health or is liable to become a
charge against the Local Union or International
Union, acceptance of the withdrawal card can be
refused by the Local Union. Likewise, acceptance
of a withdrawal card may be refused where adverse
employment conditions exist.
The Union's computer contains entries that show that
Vierck was recalled by Northern Conveyor in March
1980, and that his withdrawal card was deposited with
the Union on April 11, 1980. Vierck did not recall re-
turning to work for Northern Conveyor in March 1980,
but did not deny that he had done so. This computer
record, Respondent's Exhibit 5, shows that dues were
checked off for him by Northern Conveyor, and for-
warded to the Union for the months of March, April,
May, and June. On July 28, 1980, Vierck paid in cash
$13 dues for that month, and 50 cents for a withdrawal
card. As the General Counsel states in his brief, it is un-
disputed that Vierck has been on withdrawal status since
July 1980.
Vierck was hired by Gilman Engineering in November
1980, and worked as an assembler until being laid off in
October 1981. While working for Gilman, he was a
member of the International Association of Machinists.
When he was laid off he obtained a withdrawal card
from the IAM.
C. The Events of 19825
On approximately March 19, Local 579 commenced an
economic strike against Northern Conveyor, and placed
pickets around its plant. The Company, in turn, adver-
tised for permanent replacements in the Janesville news-
paper. Upon reading the advertisement, Vierck applied
for a job on April 4, and commenced working on April
5. He continued to work until August 6 when he was
5 All dates are in 1982 unless otherwise indicated
TEAMSTERS LOCAL 579 (NORTHERN CONVEYOR)
laid off. During this period of employment Vierck daily
crossed the Union's picket line and worked in the plant.
Vierck was admittedly on withdrawal status from the
Respondent during the period in which he crossed the
picket line On October 29, pickets were withdrawn and
Local 579 terminated its unsuccessful strike.
In December, organizer French, who had been the
picket-line captain at Northern Conveyor during the
strike, filed charges against Vierck.6 Most of the charges
were in general terms, alleging violation of his oath of
loyalty to the Union, secession, and disruptive conduct.
But the key charge, as underlined by French, read as fol-
lows- 5. Crossing an Authorized Primary Picket Line estab-
lished by the members' Local Union or any other subor-
dinate body affiliated with the International Union.
By a certified letter dated December 3, Respondent's
secretary-treasurer Kaiser ordered Vierck to appear
before the Union's executive board on January 15, 1983,
to hear the charges filed against him by French. A copy
of the charges was attached to the letter. On direct ex-
amination, Vierck testified that he received this letter on
December 5, and proceeded to telephone the union
office on the same date, talking to a secretary On cross-
examination, upon being shown the postal return receipt
signed by him and dated December 8, Vierck admitted
that he received the document on December 8, and
called the union office on the same day about 5 or 5:15
p.m. where he proceeded to talk to Kaiser. What was
said during this conversation presents the sole credibility
issue in this case.
Vierck testified that the following conversation took
place:
Well, I asked him what the letter was about, be-
cause I didn't know what was going on And at
which time he said that I knew what the hell the
letter was about, that I had been crossing, we had
been crossing picket lines, and I said well, that I
wasn't a card-carrying member, that I didn't feel I
belonged to the union, because I was on a with-
drawal status.
And he said that he didn't care if I was on with-
drawal status or not, that I had broken their consti-
tution, and that they were going to proceed to the
Supreme Court if they had to to see that our wages
were garnished for the time that we worked there.
At the end of the 5-minute conversation, Vierck called
Kaiser a foul name and hung up the phone.
According to Kaiser, the office secretaries had gone
home at their regular quitting time of 4:30 p.m , and he
personally answered the phone. The call came at 5:16
p.m. as he looked at the office clock and jotted that time
down, as was his standard procedure. Upon Vierck
asking him what the charges meant , Kaiser told him they
were self-explanatory. The secretary-treasurer described
the balance of the conversation as follows-
Sec l(f) of art XIX, Trials and Appeals, provides that "Charges
may be preferred against a suspended member or an ex-member who has
been issued a withdrawal card "
103
And well, he went on to say what are you going
to do about it? I said I don't, I can't tell you what
we're going to do about it, I said, this will occur
before the executive board, and if the charging
party don't show up, Ken, I said the charges will be
dropped against you
If you don't show up, and the charging party
shows up, we will proceed unless you send to me a
reason why you can't be there, and if you can't be
there, just tell me in writing what day will be con-
venient for you, because the Constitution provides
it's at the convenience of the charged party. I
stressed this very clearly to him when I talked to
him.
And there was-well, then he asked what would
be the outcome of it, I told him I said I don't know,
I don't make that decision myself, I said, it will be
heard before the executive board. And I said then
they'll make the decision, not me.
Kaiser denied that he made any statement that the Union
would go to the Supreme Court to see that Vierck's
wages were garnisheed, and did not hear Vierck call him
a foul name as he hung up
Vierck was an equivocal witness with a faulty
memory. Kaiser was a candid, straightforward, impres-
sive witness, and I credit his version of this conversation.
Since I have credited Kaiser's account of this conversa-
tion, I find that Respondent did not threaten Vierck with
a fine for crossing a picket line.
D. The Trial
On January 15, 1983, the executive board of the Union
convened for the trial.7 Vierck did not appear and, as he
had not asked for a postponement, the trial proceeded.
French testified that Vierck had crossed the Union's
picket line at Northern Conveyor from sometime in
April through August 1982, and at no time during those
5 months had he respected Local 579's picket line
The trial board went into executive session , and after
noting that Vierck was on a withdrawal card during the
period he had crossed Local 579's picket line, found
Vierck guilty of:
1. Violating his oath of loyalty to the Local
Union and the International;
2 Disruptive conduct;
3. Crossing an authorized primary picket line of
the Respondent 8 The trial board imposed the fol-
lowing penalties:
1. For violating his oath of loyalty, a fine of
$1000;
2. For disruptive conduct, expulsion from the
International Union for life;
' The trial board, as provided in the International constitution, consist-
ed of the Local Union's president, vice president, secretary-treasurer, re-
cording secretary, and three trustees
8 Vierck was not found guilty of fostering secession
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 For crossing an authorized picket line, a fine of
$89009
Respondent did not notify Vierck or anyone else of
the executive board's decision, nor did it take any action
to enforce any of the penalties contained in its decision.
Respondent's computer records currently reflect that
Vierck is on withdrawal status (as set forth in R Exh 4)
As Kaiser candidly testified, if Vierck would again
work under the jurisdiction of Local 579, and would
turn in his withdrawal card, he would be required to pay
the fines imposed on him at the January 15th meeting,
before the card would be accepted.
E Analysis and Conclusions
As correctly stated by the General Counsel in his
brief, a union violates Section 8(b)(1)(A)1O when it fines,
or brings proceedings to fine, a person for crossing a
picket line, who has resigned from that Union prior to
the union penalty. NLRB v. Textile Workers Local 1029
Granite State Joint Board, 409 U.S 213 (1972); Machin-
ists Booster Lodge 405 (Boeing Co.) v. NLRB, 412 U S. 84
(1973). It is the linchpin of the General Counsel's case
that when Vierck received a withdrawal card from the
Union he was in effect resigning from the Union and,
since he was no longer a member, he was not subject to
any penalty other than expulsion from membership.
Respondent argues vigorously in its brief that the
taking of a withdiawal card is not equivalent to resigna-
tion from the Union, and that when Vierck went on
withdrawal status, it was a continuation of his member-
ship in the Union, making him subject to applicable
union discipline for crossing the Local 579 picket line at
Northern Conveyor We are thus faced with the pivotal
question of whether Vierck's acceptance of a withdrawal
card constituted his resignation from the Union.
Since neither the Act nor the International constitution
or the Local Union's bylaws define resignation, we must
look elsewhere in order to construe the word in its
proper meaning. One such construction is to be found in
NLRB v. Textile Workers Local 1029, wherein the Su-
preme Court said at 217:
Where a member lawfully resigns from a union and
thereafter engages in conduct which the union rule
proscribes, the union commits an unfair labor prac-
tice when it seeks enforcement of fines for that con-
duct. That is to say, when there is a lawful dissolu-
tion 11 of a union-member relation, the union has no
more control over the former member than it has
over the man in the street
From my examination of the record as a whole, I find
that there was a dissolution of Vierck's relationship with
Local 579 when Respondent issued to him a withdrawal
card
The strength in the General Counsel's case rests
squarely on language found in Respondent's own docu-
ments that forcefully negate any thought that a person
on a withdrawal card is a member. Time after time the
Union's documents clearly refer to such persons as "ex-
members" or "former members." Other terms such as
"withdrawn from membership" are also used in the
Union's own printed forms to establish the relationship
of the person with the Union
The most powerful and bluntest of all the Unions' doc-
uments, to prove that a person on withdrawal is not a
member, is the honorable withdrawal card i 2 that was
used by Local 579, Respondent's Exhibit 2. This printed
form states squarely therein that the bearer "has with-
drawn in good standing from membership" in the Local
Union 13
Section 6(b) reads that the bearer is entitled "to read-
mission to the Local Union from which the card was
issued at any time, subject, however, to the provisions of
subsection (e) of this Section and provided the bearer has
obtained employment in the craft." Thus, it is immediate-
ly evident that the bearer has no independent right to be
readmitted into the Local Union when he or she choos-
es, but, as the first step, can only be readmitted if he or
she has a job under a contract to which the Union is a
party
Section 6(c) of this document refers to a member who
refuses full-time employment, and states forthrightly, he
"shall be given an honorable withdrawal card and cannot
remain a member."
Section 6(d) squarely used the term ex-member , stating
that "any ex-member out on a withdrawal card and de-
siring to return to memberhsip must deposit his/her
withdrawal card with the Local Union by which it was
issued ." Further language in this section reads that "upon
the withdrawal card being accepted, the member shall be
subject to the rules and laws of the Local Union." This
language leaves the clear inference, which I draw, that
the person on withdrawal is not subject to union rules
and laws while he or she is on withdrawal, and only be-
comes subject to these rules, after his or her card is ac-
cepted and he or she thereby once again becomes a
member. 14
9 During the Board's deliberations there had been a consensus that
Vierck earned approximately $9000 during the weeks he had crossed
Local 579's picket line
10 Sec 8 (b)(1)(A) provides that
It shall be an unfair labor practice for a labor organization or its
agents 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
11 Dissolution is defined in Black's Law Dictionary, Fifth Ed (1979)
as The dissolution of a contract is the cancellation or abrogation of it by
the parties themselves , with the effect of annulling the binding force of
the agreement and restoring each party to his original rights "
12 As testified to by Kaiser there is no dishonorable withdrawal card
11 The withdrawal form contained in the International constitution
was not used by Local 579 Local 579's form contained the same Sec
6(b)(c)(d) and (e) as contained in the International constitution's form
Sec 6(a) of the constitution which is not contained in Local 579's form,
states therein that the bearer "has withdrawn in good standing from
membership" in the Local Union This phrase was placed by the Local in
the body of the front half of its withdrawal card, just below where the
name of the withdrawing party is typed
14 Kaiser testified that a person on withdrawal could deposit his card
at any local union in the country Sec 6(b) and (e) above do not bear this
out, as both subsections read that he must first deposit his card with the
local union that issued it
TEAMSTERS LOCAL 579 (NORTHERN CONVEYOR)
Section 6(e) calls the card bearer an ex-member in two
different sentences. It also goes to conclusively prove
that a person on withdrawal does not have the uncondi-
tional right to deposit his or her card with the union, and
thus become a member again This section states that a
local union "must not accept a withdrawal card if the ex-
member has committed any offense while out on with-
drawal card which would be injurious to union princi-
ples " Also, if the "ex-member" could become a charge
against the Local or International, the Local can refuse
to accept the withdrawal card. The final sentence of the
paragraph paints with the broadest brush the Local's
right to refuse to accept a withdrawal card, "Likewise,
acceptance of a withdrawal card may be refused where
adverse employment conditions exist." 15
Local 579's own bylaws contain straightforward lan-
guage reflecting that a person on withdrawal is not a
member, as section 19(c)(1) reads. "A member who has
been issued a withdrawal card shall be considered to
have voluntarily withdrawn from membership in the
Local Union."
Another key test in showing that a person on with-
drawal is not a member is to examine what are the
union-granted rights of a member as compared to the
rights of a person on withdrawal. Section 19(F) of Local
579's bylaws sets forth the following rights of members:
(1) the right to nominate candidates or vote in
elections or referendums of the Union,
(2) the right to attend membership meetings, and
to participate in the deliberations and voting upon
the business of such meetings; and
(3) the right to meet and assemble freely with
other members and to express any views, argu-
ments, or opinions , and to express at meetings views
upon candidates in an election of the union or upon
any business properly before the meeting, subject to
the organizations established and reasonable rules.
A person on withdrawal falls far short of having these
rights. Subsection (C) of the same section 19 specifically
denies the person on withdrawal the right to vote. It also
nullifies the person's right to participate in the business
of the meeting, because that person "shall have only
such right to participate in the meetings and affairs of the
Local Union as shall be permitted by the Local Union
executive board "is This restrictive language is broad
enough to permit the executive board to bar the person
on withdrawal from participating in any aspect of the
meeting.
The General Counsel argues in his brief that the right
to vote and hold office are the essence of union member-
ship, and that without this right, there can be no mem-
bership The Labor-Management Reporting and Disclo-
sure Act of 1959 [LMRDA] supports the contention as
to the right to vote. In Title 1, the Bill of Rights of
75 Sec 6 (d) above does provide that if a local union refuses to accept a
withdrawal card, it shall be subject to the appeal procedure provided for
by the constitution, excluding an appeal to the convention
'6 This clause tracks the wording in art XVIII, sec 5(b) of the Inter-
national constitution
105
Members of Labor Organizations , section 101(a)(1)
states
Every member of a labor organization shall have
equal rights and privileges within such organization
to nominate candidates, to vote in elections or refer-
endums of the labor organization, to attend mem-
bership meetings, and to participate in the delibera-
tions and voting upon the business of such meetings,
subject to reasonable rules and regulations in such
organizations constitution and bylaws.
But the International constitution and the Local's bylaws
specifically deny the person on a withdrawal card the
right to vote in any matter, and basically require that
person to be a spectator at a union meeting, without any
right to participate in the deliberations, except as permit-
ted by the Local's executive board
It is also to be noted that the LMRDA defines the
word member in Section 3(o) as follows.
"Member" or "member in good standing," when
used in reference to a labor organization, includes
any person who has fulfilled the requirements for
membership in such organization, and who neither
has voluntarily withdrawn from membership nor
has been expelled or suspended from membership
after appropriate proceedings consistent with lawful
provisions of the constitution and bylaws of such
organization.
As will be observed, the definition presents three ways in
which a member can lose his or her status as a member,
by voluntarily withdrawing from membership, by being
expelled, by being suspended. This definition does not
use the word resignation as a basis for losing member-
ship, but uses the much broader term "voluntarily with-
drawing from membership," which of course, embraces
the narrower term of resignation. Thus, when the Local
Union in section 19(C)(1) of its bylaws states that "A
member who has been issued a withdrawal card shall be
considered to have voluntarily withdrawn from member-
ship in the Local Union," it is tracking the language used
by the LMRDA on how a person can cease being a
member of a union, and is saying, for all practical pur-
poses, that he or she has resigned.
Respondent in its brief contends that a person may be
considered a member, even though he is referred to as an
ex-member, and in support thereof cites the case of Alvey
v. General Electric Co., 622 F.2d 1279 (7th Cir. 1980) In
this case, the court stated that
Congress did not limit the protections of the Lan-
drum-Griffin Act to those whom the union recog-
nizes as members Rather, one who has fulfilled the
membership requirements that is, one who is a
member in substance , is protected.
To prove that Vierck was a member in substance, Re-
spondent relies heavily on the assertion that he could
attend meetings and could have spoken at those meet-
ings. As set forth supra, a person on a withdrawal card
attends meetings only at the sufferance of the executive
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
board, and his right to participate in the meeting is com-
pletely subject to the executive board's whim and can be
denied altogether.
Respondent also points to several other factors. One is
that a person who resigns does not have to pay any fee
to do so. Since the person who goes on withdrawal only
pays 50 cents for the withdrawal card, this is too mini-
mal to have any weight Also, the 50 cents fee does have
some relevance to the cost of the card, and the time of
the union secretary to fill it out No such costs are in-
curred when a member resigns.
Respondent also contends that a person on a with-
drawal card has a status to run for office that a person
who resigned does not The constitution rules on eligibil-
ity to run for office require that a candidate for office be
in continuous good standing in the local union for the
past 24 months, i.e., that he or she has paid dues on time
for the past 24 months. Article II, section 4(a)(1) pro-
vides that, if a person who took a withdrawal card in
one month, deposits his card in the next month, and pays
his dues for those 2 months, that 2-month period will not
be considered as a breach in continuous good standing,
and he or she can run for office. Respondent further
points out that a person who resigns is not entitled to
even one day's grace period to avoid a break in the re-
quired period of 24 months of continuous good standing.
This concession to the person on withdrawal is too insig-
nificant to help establish that Vierck was a member in
substance
Respondent further contends that the fact that article
XVIII, section 6(d) of the constitution allows the person
on withdrawal to use the union appeal procedure, if any
local union would refuse to accept his or her withdrawal
card, helps to prove that Vierck was a member in sub-
stance, since a person who resigns has no such right
This again is a small concession to the person on with-
drawal, but is far too weak a reed to rely on
Finally, Respondent points out that the obligation to
pay dues is suspended when a person is on a withdrawal
card, and that unlike a resigned member, when he or she
becomes re-employed, and reactivates his or her status as
a member, he or she may deposit his or her card with
the Local Union and resume paying dues, without the
payment of the $100 initiation fee This right not to have
to pay the initiation fee a second time is truly a meaning-
ful difference between a person on withdrawal and a re-
signed person However, due to the fact that the Local
Union for various reasons may refuse altogether to
accept the withdrawal card, it is a nebulous right that
the ex-member may never be permitted by the Local
Union to enjoy.
It is true as Respondent contends that Vierck never
submitted either a written or oral resignation. However,
the contents of the document given him by the Respond-
ent, the honorable withdrawal card, made such an act su-
perfluous. On the front side it told him that he "was
withdrawn in good standing from membership" in the
Local Union On the reverse side, it informed him that
the card entitled him to "readmission" to the Union sub-
ject to certain contingencies. It also, in three different
places, referred to him as an ex-member. Vierck had a
right to rely on the common meaning of these words,
and to take them at face value As stated in Electrical
Workers IBEW Local 1260 (Western Telestations), 239
NLRB 923 (1978), "Membership in a union is a volun-
tary association requiring certain obligations on the part
of both parties" If the Respondent did not mean that
Vierck was withdrawing from membership in the Union,
it has a duty to tell him so. If Respondent did not mean
that a person on a withdrawal card was an ex-member,
but was really a member of the Union, it had a duty to
so advise Vierck that the words on the withdrawal card
did not mean what they said.
During the period of April 5 to August 6, 1982, when
Vierck worked for Northern Conveyor, organizer
French observed Vierck crossing the picket line on a
daily basis Yet the record does not disclose that Vierck
was ever told in any fashion that he was still a member
of Local 579, and as a member he had a duty under the
constitution not to cross the picket line The contents of
the withdrawal card given to him by Local 579 were
ample justification for him to believe that he had with-
drawn from Local 579, that he was no longer a member,
and as an ex-member he had a right to work wherever
he pleased, without being subject to any discipline from
Respondent.
Respondent further contends in its brief that if the
complaint is not dismissed , the Board will be holding in
effect that a union may not have a withdrawal system at
all, and that will be an interference with internal union
affairs, prohibited by the proviso to Section 8(b)(1)(A).
This decision is in no way to be so construed Withdraw-
al cards have long played a substantial and recognized
part in the American industrial system, and their contents
vary from union to union . All this decision holds is that
the contents of the withdrawal card of Local 579, and
the balance of the record in this case , show that Vierck
was not a member of Local 579 when he crossed the
picket line at Northern Conveyor.
Respondent also contends that since the decision of the
executive board was never communicated to Vierck or
acted on in any way, there was no restraint or coercion
to constitute a violation of Section 8(b)(1)(A) But Kai-
ser's testimony as to what would happen if Vierck were
to turn in his withdrawal card leaves no doubt that Re-
spondent stands poised to coerce Vierck by requiring
him to pay his fine that was imposed at the January 15,
1983 meeting, before his withdrawal card would be ac-
cepted When Local 579 went through the steps leading
up to, and including Vierck' s trial , certainly the Union
did not intend the verdict of the trial board to have no
meaning. It is to be noted that Vierck signed his charge
on January 14, and that it was filed at the Regional
Office on January 19, 1983. For reasons known only to
Respondent, it did not transmit the results of the January
15 trial to the person it fined.
It is also important to note that section 9(d) of article
XIX of the constitution provides that if the decision of
the trial board carries with it an order of expulsion, such
order of expulsion shall "immediately take effect" subject
only to a stay by the International president Thus, by
the constitution, Vierck was expelled on January 15,
1983, even though it was not communicated to him and
TEAMSTERS LOCAL 579 (NORTHERN CONVEYOR)
the fine sits there like a sword of Damocles, ready to be
triggered at the moment he would request readmission to
the Union
I, therefore, find that it was Respondent who terminat-
ed its contractual relationship with Vierck when it issued
him the withdrawal card, and that it thereby dissolved
its relationship with him. After Vierck had withdrawn
from membership in the Union in July 1980, he in no
way could be construed to be a member in substance. I,
therefore, find that Vierck did not enjoy the membership
status that would permit Respondent to fine him for
crossing a picket line during a strike Accordingly, I find
that by imposing fines on Vierck, Respondent violated
Section 8(b)(1)(A) of the Act. Electrical Workers IBEW
Local 1260 (Western Telestations). Ibid.
CONCLUSIONS OF LAW
1 Northern Conveyor Manufacturing Corporation is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By being issued an honorable withdrawal card in
July 1980 by the Respondent, Kenneth W. Vierck had
voluntarily withdrawn from membership in the Union.
4. By fining Kenneth W Vierck for crossing a picket
line when he was not a member of the Respondent, Re-
spondent engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) of the Act.
THE REMEDY
Having found that Respondent has engaged in, and is
engaging in, unfair labor practices in violation of Section
8(b)(1)(A) of the Act, I shall recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I have also found that Respondent levied fines against
Vierck in violation of the Act. Accordingly, I shall rec-
ommend that Respondent rescind the fines levied against
him, and advise him in writing that it has done so.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed17
ORDER
The Respondent, General Drivers, Dairy Employees
and Helpers Local Union No. 579, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, its officers,
agents, and representatives, shall
1. Cease and desist from
17 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
107
(a) Refusing to give effect to Kenneth W. Vierck's
withdrawal from membership in the Union in July, 1980.
(b) Restraining or coercing employees who are not
members of Respondent in the exercise of their rights
guaranteed by Section 7 of the Act, by imposing fines on
them for crossing a picket line.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2 Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Rescind the fines levied against Kenneth W. Vierck
because he crossed a picket line established by Respond-
ent at the premises of Northern Conveyor Manufacturing
Corporation in 1982, and expunge from its records any
reference to these fines.
(b) Notify Kenneth W. Vierck, in writing, that he had
effectively withdrawn from memberhhip in the Respond-
ent when he was issued a withdrawal card in 1980.
(c) Post at its business office and meeting hall copies of
the attached notice marked "Appendix."18 Copies of the
notice, on forms provided by the Regional Director for
Region 30, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Mail to the Regional Director sufficient signed
copies of the notice for posting by Northern Conveyor
Manufacturing Corporation, if willing, in places where
notices to employees are customarily posted. The copies,
after being signed by Respondent's authorized represent-
ative, shall be returned forthwith to the Regional Direc-
tor.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that, insofar at it alleges mat-
ters that have not been found to be violations of the Act,
the complaint is dismissed
]A If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL rescind the fines levied against Kenneth W
Vierck because he crossed a picket line authorized by
our Union at Northern Conveyor Manufacturing Corpo-
ration in 1982, and expunge them from our records.
WE WILL notify Kenneth W Vierck, in writing, that
he has effectively withdrawn from membership in our
Union.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
GENERAL DRIVERS, DAIRY EMPLOYEES
AND HELPERS LOCAL UNION No. 579,
A/W THE INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA