Union Independiente De Trabajadores De Servicios Legales De Puerto Rico (Corp. De Servicios Legales De Puerto Rico, Inc.)

National Labor Relations Board - Board Decisions

Jan 10, 1986

277 N.L.R.B. 1510 (N.L.R.B. 1986)

1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Independiente de. Trabajadores de Servicios
Legales de Puerto Rico (Corporacion de Servi-
cios Legales de Puerto Rico, Inc.) and Ferdi-
nand Lugo . Case 24-CB-1261
10 January 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 20 August 1985 Administrative Law Judge
William A. Pope issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed limited exceptions
and a brief in support of the decision.
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 light of the 'exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended
Order. I
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Independiente de Trabajadores de Servi-
cios Legales de Puerto Rico, Hato Rey, Puerto
Rico, its officers, agents, and representatives shall
take the action set forth in the Order as modified.
Substitute the following for paragraph 2(c).
"(c) Post at its business office, meeting halls, and
any other places where it customarily posts notices
to its members, copies of the attached notice
marked 'Appendix,'-5 Copies of the notice, which
shall be in Spanish and English, on forms provided
by the Regional Director for Region 24, after
being signed by the Respondent Union's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places, including
all places where notices to members are customari-
ly posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material."
' The General Counsel excepted to the judge's failure to provide that
the notice to members ordered in his remedy be posted both in Spanish
and in English We agree, and shall modify the recommended Order ac-
cordingly.
Cornele A. Overstreet, Esq., for the General Counsel.
Jose E. Carreras Rovira, Esq., of Hato Rey, Puerto Rico,
for the Respondent.
DECISION
WILLIAM A. POPE II, Administrative Law Judge. In a
complaint issued on 4 January 1984, as amended on 24
October 1984, the Regional Director for Region 24 al-
leged that the Respondent, Union Independiente de Tra-
bajadores de Servicios Legales de Puerto Rico (the
Union), committed unfair labor practices, in violation of
Section 8(b)(1)(A) of the National Labor Relations Act
(the Act), by filing internal union charges against certain
of its members, variously for allegedly not participating
in a picket line, working behind a picket line, or not at-
tending scheduled union meetings. The charge in this
case was filed on 16 November 1984, and amended.on 7
December 1984. Trial was held between 30 April and 2
May 1985 in Hato Rey, Puerto Rico, before me.
I. BACKGROUND
The Respondent Union and the Corporacion de Servi-
cios Legales de Puerto Rico, Inc., a nonprofit corpora-
tion engaged in providing legal services to indigent cli-
ents in the Commonwealth of Puerto Rico, are parties to
a collective-bargaining agreement covering the period
from 10 May 1984 to 10 May 1987, which contains the
following union-security clause:
ARTICLE 3
UNIONIZED SHOP
Section 1.
It will be a condition for employment for all work-
ers of the Corporation covered by this Agreement
that at the time of signature same is not affiliated as
a member of the Union, to affiliate itself to same
within thirty (30) days after signature of this Agree-
ment.
Section 2.
It will be a condition for employment for all new
workers that the Corporation employs after the
Collective Agreement is signed to affiliate as a
member of the Union within thirty days (30) of its
employment date.
Section 4.
By means of a written request from the Union, the
Corporation is obliged to dismiss any worker that
refuses to or does not belong to the Union as a bona
fide member and/or does not pay the regular
and/or initiation dues that are overdue in accord-
ance with the dispositions of this article and the dis-
positions of the labor laws applicable to the Corpo-
ration.
The Charging Party, Ferdinand Lugo, and the other
alleged discriminatees named in the complaint, " are at-
' Janice Velez Wampel, Felipe Matos Rivera, Ricardo Javier Falcon,
Ferdinand Lugo Gonzalez (the Charging Party), Jose M Martinez Cha-
morro, Nydia Velez Vargas, and Carmen Leticia Santiago
277 NLRB No. 174
TRABAJADORES DE SERVICIOS LEGALES (CORPORACION DE SERVICIOS LEGALES)
torneys employed by the Corporacion de Servicios Le-
gales de Puerto Rico., Inc., and are members of the unit
represented by the Respondent Union for collective-bar-
gaining purposes. The Respondent Union variously pre-
ferred internal union charges against the Charging Party
and the other alleged discriminatees for allegedly failing
to attend scheduled union meetings on 8 April and 21
October 1984, failing to participate in a union picket line
on 10 May 1984, or working behind a union picket line
on 12 July 1984.
It was stipulated all trial that the Charging Party and
the other alleged discriminatees, except Janice Velez
Wampel, resigned from the Respondent Union on 11
May 1984; Wampel's date of resignation was stipulated
to be 8 November 19132. In a partial settlement approved
by me at trial, the Respondent agreed that no punish-
ment greater than expulsion will be imposed by the
Union for preresignation conduct, except that those em-
ployees who worked on 10 May 1984 can be disciplined
according to the Respondent Union's bylaws. Should
such discipline result in economic sanctions, however,
the Respondent Union agreed not to enforce the sanc-
tions in court or through any other proceedings.2
II. ISSUE
The sole issue to be decided in this case is whether
members of the Respondent Union are barred from re-
signing from the Union during the term of the collective-
bargaining agreement with their employer, because of
the union-security clause which the agreement contains.
If the members of the Union are not barred from resign-
ing by operation of the union-security clause, the Re-
spondent Union violated Section 8(b)(1)(A) of the Act
by refusing to accept the resignations of the Charging
Party and other alleged discriminatees in this case and
preferring internal union charges against them for con-
duct which took place after their resignations were ten-
dered. If the Respondent Union was not required to
accept their resignations, it did not violate the Act, as al-
leged in the complaint.
The General Counsel argues that "voluntary union-
ism" and Section 7 require that union members have the
right to resign from the union at any time, the union's
rules to the contrary notwithstanding. Moreover, says
the General Counsel, a union cannot compel the mainte-
nance of full union membership through the provisions
of a collective-bargaining agreement with an employer.
Union membership under Section 8(a)(3), says the Gener-
al Counsel, means something less than full membership.
The Board and the courts have consistently held that a
maintenance-of-membership clause in a collective-bar-
gaining agreement does not limit a member's right to
resign, asserts the General Counsel. And, concludes the
General Counsel, even though the Union has not and
may never impose or attempt to collect a fine for postre-
2 As a further part of the partial settlement, the Respondent Union
agreed to cease and desist fiom enforcing art I, sec 3(d), of its bylaws,
providing for a delay of 20 days, after notice, before a resignation can
become effective, in the absence of a collective-bargaining agreement
with a union-security clause, and to seek rescission of that provision of
the bylaws
1511
gistration conduct, the mere preferral of internal union
charges is coercive.
For its part, the Respondent sees a conflict between
two fundamental policies of the Act: First, that employ-
ees should not be restrained from exercising their right
to refrain from collective-bargaining activities; and,
second, that unions must be allowed flexibility to regu-
late their internal affairs. Here, the Respondent notes, the
restraint is imposed not by the Union, but by a collec-
tive-bargaining agreement. As the Respondent sees it,
that distinguishes this case from other cases which deal
with internal union restrictions on the right of members
to resign, most often involving a strike situation. The Re-
spondent asserts that the union-security clause requiring
employees to remain "bonafide members" must be given
"total validity," because the clause was ratified by the
members and was known to all.
III. FINDINGS AND CONCLUSIONS
It is well established that full union membership
cannot be a condition of employment, even where a col-
lective-bargaining agreement requires union membership
as a condition of employment.3 In its recent decision in
Pattern Makers League v. NLRB, 473 U.S. 95, 106 (1985),
the Supreme Court discussed the nature of union mem-
bership which can be required under a union-security
agreement, stating:
... Section 8(a)(3) of that Act [the Taft Hartley
Act] effectively eliminated compulsory union mem-
bership by outlawing the closed shop. The union se-
curity agreements permitted by § 8(a)(3) require
employees to pay dues, but an employee cannot be
discharged for failing to abide by union rules or
policies with which he disagrees.16
Full union membership thus no longer can be a
requirement of employment. If a new employee re-
fuses formally to join a union and subject himself to
its discipline, he cannot be fired. Moreover, no em-
ployee can be discharged if he initially joins a
union, and subsequently resigns. We think it note-
worthy that § 8(a)(3) protects the employment
rights of the dissatisfied member, as well as those of
the worker who never assumed full union member-
ship. By allowing employees to resign from a union
at any time, § 8(a)(3) protects 1 he employee whose
views come to diverge from those of his union.
16 Under § 8(a)(3), the only aspect of union membership that
can be required pursuant to a union shop agreement is the payment
of dues. See Radio Officers v NLRB, 347' U.S 17, 41 (1954) (union
security agreements cannot be used for "any purpose other than to
compel payment of union dues and fees"). "`Membership', as a
condition of employment, is whittled down to its financial core."
a Sec 8(a)(3) of the Act states "Provided, That nothing in this Act, or
in any other statute of the United States, shall preclude an employer from
making an agreement with a labor organization (not established, main-
tained, or assisted by any action defined in section 8(a) of this Act as an
unfair labor practice) to require as a condition of employment member-
ship therein on or after the thirtieth day following the beginning of such
employment or the effective date of such agreement, whichever is the
later "
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NLRB v General Motors Corp, 373 U S. 734, 742 (1963) See also
Ellis v. Railway Clerks, 466 U.S 435 (1984) (under the Railway
Labor Act, employees in a "union shop" cannot be compelled to
pay dues to support certain union activities) Therefore, an em-
ployee required by a union security agreement to assume financial
"membership" is not subject to union discipline Such an employee
is a "member" of the union only in the most limited sense
In Pattern Makers League v. NLRB, supra, the Su-
preme Court dealt with the validity of internal union re-
strictions upon the right of its members to resign. In that
case, certain union members who submitted letters of res-
ignation and returned to work during a strike were fined
by the union under a provision of its constitution prohib-
iting resignations or withdraws from the union during a
strike or lockout, or when a strike or lockout appears im-
minent. The Court drew a parallel to an employee's free-
dom to resign from full union membership when union
membership is required as a condition of employment by
a union-security agreement, and concluded that a union's
constitutional prohibition against resigning during a
strike or lockout, or the imminent threat of one, also cur-
tailed this freedom. Moreover, the Court rejected the ar-
gument that fining a member, without discharging him,
does not interfere with his employment rights. The
Court found that the National Labor Relations Board
"was justified in, concluding that by restricting the right
of employees to resign . . . [a union] . . . impairs the
policy of voluntary unionism ." Pattern Makers League v.
NLRB, supra.
The Charging Party and the other alleged discrimina-
tees in this case had the right to resign from the Re-
spondent Union at any time. Upon tendering their resig-
nations, which the Respondent Union was required to
accept, they were no longer subject to union discipline,
nor were they under any obligation to assist the Re-
spondent Union or obey any of its rules or orders. The
only aspect of union membership required of the Charg-
ing Party and the other alleged discriminatees by the
union-security clause in the collective-bargaining agree-
ment was a financial one: to continue paying the dues
and fees assessed of union members.
The Respondent Union has no right to refuse to accept
the resignations of any of its members when tendered,
and it is prohibited from fining or taking any other disci-
plinary action against members who have lawfully re-
signed for their conduct following their resignations.
The Respondent Union violated Section 8(b)(l)(A) of
the Act by preferring internal union charges against the
Charging Party and the other alleged discriminatees in
this case for their conduct following the tender of their
resignations from the Union.
CONCLUSIONS OF LAW
1. At all times material, the Respondent, Union Inde-
pendiente de Trabajadores de Servicios Legales de
Puerto Rico, was and is a labor organization within the
meaning of Section 2(5) of the Act
2. At all times material, the Respondent was the exclu-
sive bargaining representative for purposes of collective
bargaining of all employees of the Corporacion de Servi-
cios Legales de Puerto Rico, Inc., in the following unit:
All employees utilized by the Employer for the ren-
dering of legal services to indigent persons, includ-
ing the professional and the receptionist-telephone
operator at the offices of the Executive Director;
excluded: administrators, executives, supervisors,
Special Director, the Executive Secretary to the
Assistant Executive Director, the Coordinator of
Administration, Coordinator of Litigation and Leg-
islation, the Coordinator of Community Education,
attorney-directors, the comptroller, the Personnel
Office, the Secretary to the Coordinator of Admin-
istration, the Secretary to the Comptroller, the Sec-
retary of the Board of Directors, provisional and
temporary employees, contract employees of the
Smith Fellowship Program Reggie, confidential em-
ployees, managerial employees (closely, allied to
management), employees who present conflict of in-
terests with other corporation employees and any
other person possessing the authority to hire, dis-
charge, promote, discipline or in any other manner
vary the status of the employees or make recom-
mendations to that effect.
3. By filing internal union charges against Ferdinand
Lugo, the Charging Party, Janice Velez Wampel, Felipe
Matos Rivera, Ricardo Javier Falcon, Jose M. Martinez
Chamorro, Nydia Velez Vargas, and Carmen Leticia
Santiago, after they had lawfully resigned from the Re-
spondent Union, for conduct which occurred after their
resignations, the Respondent violated Section 8(b)(1)(A)
of the Act.
4. The foregoing unfair labor practice is an unfair
labor practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent engaged in an
unfair labor practice in violation of Section 8(b)(1)(A) of
the Act, I find it appropriate to order that it cease and
desist therefrom and take certain affirmative action nec-
essary to effectuate the policies of the Act, including ac-
cepting the resignations of the persons named in Conclu-
sion of Law 3 and withdrawing all internal union
charges filed against them for conduct occurring on or
after 11 May 1984 (except, in the case of Janice Velez
Wampel, on or after 8 November 1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend,
ed4
ORDER
The Respondent, Union Independiente de Trabaja-
dores de Servicios Legales de Puerto Rico, Hato Rey,
Puerto Rico, its officers, agents, and representatives,
shall
1. Cease and desist from
4 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
TRABAJADORES DE SERVICIOS , LEGALES (CORPORACION DE SERVICIOS LEGALES)
(a) Refusing to accept immediately resignations ten-
dered by members of the Respondent Union.
(b) Restraining or coercing employees who have re-
signed from, and are no longer full members of, the Re-
spondent Union in the exercise of the rights guaranteed
them by Section 7 of the Act by filing internal union
charges, which could result in any disciplinary action, in-
cluding fines , whether or not court-collectible, against
them because of their postresignation conduct.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Accept the resignations of Felipe Matos Rivera, Ri-
cardo Javier Falcon , Ferdinand Lugo Gonzalez, Jose M.
Martinez Chamorro, Nydia Velez Vargas, and Carmen
Leticia Santiago , to take effect retroactively on 11 May
1984; and the resignation of Janice Velez Wampel to
take effect retroactively on 8 November 1982.
(b) Withdraw and dismiss all internal union charges
tiled against Janice Velez Wampel , Felipe Matos Rivera,
Ricardo Javier Falcon, Ferdinand Lugo Gonzalez, Jose
M. Martinez Chamorro, Nydia Vargas , and Carmen Le-
ticia Santiago , for conduct which took place on or after
the dates upon , which their resignation from the Re-
spondent Union became effective.
(c) Post at is business office , meeting halls , and any
other places where it customarily posts notices to its
members, copies of the attached notice marked "Appen-
dix."5 Copies of the notice, on forms provided by the
Regional Director for Region 24, after being signed by
the Respondent's authorized representative , shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
5 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 Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1513
including all places where notices to members are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT restrain or coerce employees who have
resigned from, and are no longer full members of, the
Union in the exercise of the rights guaranteed to them by
Section 7 of the National Labor Relations Act, by filing
internal union charges against them because of their post-
resignation conduct.
WE WILL withdraw and dismiss all internal union
charges filed against Janice Velez Wampel , Felipe Matos
Rivera, Ricardo Javier Falcon , Ferdinand Lugo Gonza-
lez, Jose M . Martinez Chamorro , Nydia Velez Vargas,
and Carmen Leticia Santiago , for conduct occurring on
or after the dates upon which they resigned from the
Union.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
WE WILL accept immediately resignations tendered by
our members.
UNION INDEPENDIENTE DE TRABAJADORES
DE SERVICIOS LEGALES DE PUERTO Rico