NABET, Local 531

DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Association of Broadcast Employees and Technicians, Local 531, AFL-CIO, CLC (Skate- board Productions, Inc.) and Ross Kelsay, Bruce McGregor, William Pecchi.' Cases 31-CB-2639 and 31-CB-2831 September 28, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On February 7, 1979, Administrative Law Judge Stanley Gilbert issued the attached Decision in this proceeding. Thereafter, counsel for the General Counsel filed exceptions and a brief in support thereof, and the Respondent filed a reply brief in an- swer to the exceptions and in support of the Decision of the Administrative Law Judge. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge concluded that he could not find that the clause in the Respondent's constitution which apparently restricts a member's right to resign for 60 days unlawfully restrained or coerced the two employees involved in this proceed- ing,2 and thus, that the Respondent had lawfully fined employees Kelsay and McGregor because they had not effectively resigned their memberships in the Re- spondent before working for their boycotted em- ployer. We disagree, because, in our view, the resig- nation-restriction clause in the Respondent's constitution is vague and thus unenforceable. There- fore, we conclude that the Respondent, by its actions detailed in our Amended Conclusions of Law, vio- lated Section 8(b)(1)(XA) of the Act. The Administrative Law Judge, in finding that counsel for the General Counsel had not by a prepon- I At the commencement of the hearing, the Administrative Law Judge granted the motion of counsel for the General Counsel to withdraw all alle- gations in the complaint with regard to Pecchi. 2 Art. II, sec. 2.6. of the Respondent's International constitution provides as follows: Resignation of Membership. Any member not in arrears in payment of dues or in the performance of any obligation or duty to the Interna- tional Union or to any Local Union and against whom no charges are pending may at any time request resignation from the Union. A request to resign shall be in writing addressed to the Local Union. In the case where no action is taken by the Local Union. the resignations shall become automatically effective at the end of sixty (60) days. derance of the evidence demonstrated that the Re- spondent's constitutional provision was unreasonable, opined that under the current state of the law it is unclear at what point restrictions upon resignation become unreasonable and hence unenforcable. The only solution for this uncertainty, he stated, is for us to establish a certain period as a reasonable restric- tion. Due to the disability suffered by the restriction in the instant case, we need not decide today the pa- rameters of what constitutes an effective resignation restriction. An examination of the clause in question, set forth in footnote 2, supra, demonstrates that it is suscep- tible to several interpretations, including the possibil- ity that a resignation may not become effective at all in the event that the Local take some sort of unspeci- fied action, such as denying outright "[a] request to resign." Another possibility would seem to be that a member's resignation will become effective 60 days after its submission unless the Local's officers by spe- cial action permit the resignation to become effective at an earlier date; other interpretations might also be made. It is clear, however, that the ambiguities of the restriction in question fail to inform members with any certainy when they can expect their submitted resignations to become effective. As we have indi- cated in prior cases,3 in order for a restriction to be effective, it must be phrased in clear and unambigu- ous terms.4 The restriction at issue fails to meet this requirement and thus is unenforceable. Therefore, we find that Kelsay and McGregor effectively resigned upon the delivery of their letters of resignation to the Respondent's office on the morning of February 14, 1977. Accordingly, we conclude that the Respodent violated Section 8(b)(1)(A) by, inter alia, assessing and attempting to enforce fines against Kelsay and McGregor for engaging in protected postresignation conduct. We shall thus require the Respondent to re- fund the fines to the employees, if they have been collected, and we shall further order it to cease and desist in its attempts to collect illegal fines through court proceedings. AMENDED CONCLUSIONS OF LAW Substitute the following for paragraph 3 of the Ad- ministrative Law Judge's Conclusions of Law: I See Coast Valleys Typographical Union Local 650 (The Daily Breeze, Di- vision of Copley Press, Inc.), 221 NLRB 1048, 1051 (1975); Local Lodge No 1994, International Association of Machinists and Aerospace Workers, A FL- CIO (O.K. Tool Company, Inc.), 215 NLRB 651, 654 (1974) (concurring opinion of then Member Fanning and Member Jenkins). 4 Member Truesdale notes that he did not participate in the above-cited cases and that his agreement with the result reached herein does not neces- sarily indicate his complete agreement with the inferences that might be drawn from such prior decisions. Member Truesdale further notes that, given the ambiguity of the restriction in issue here, it is unnecessary to reach the question whether any restriction can be effective. 245 NLRB No. 77 638 NABET, LO "3. By threatening former members Ross Kelsay and Bruce McGregor, who had duly resigned from the Union, with union discipline, by bringing charges against them, by assessing fines against them, by threatening to institute civil actions to collect the fines, and by instituting civil actions to collect said fines, for their postresignation work on the boycotted set of Skateboard Productions, Respondent restrained and coerced Ross Kelsay and Bruce McGregor in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(XA) of the Act." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, National Association of Broadcast Employees and Techni- cians, Local 531, AFL-CIO, CLC, Los Angeles, Cali- fornia, its officers, agents, and respresentatives, shall: I. Cease and desist from: (a) Restraining or coercing any employee who has resigned from, and is no longer a member of, the Re- spondent, in the exercise of the rights guaranteed in Section 7 of the Act, by threatening him with union discipline, by bringing charges against him, by impos- ing fines on such employee, by threatening such em- ployee with suit to collect the fines, and by instituting civil actions to collect the fines imposed, because of his postresignation conduct in working at Skateboard Productions, Inc., during Respondent's boycott. (b) In any like or related manner restraining or co- ercing employees in the exercise of the rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Rescind the fines levied against Ross Kelsay and Bruce McGregor because of their postresignation work for Skateboard Productions, Inc., during the boycott which began February 7, 1977, and refund to them any moneys they may have paid as a result of such fines, plus interest thereon, to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). 5 (b) Post at its office and meeting hall copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 31, after being duly signed by an autho- rized representative, shall be posted at the aforemen- I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). s In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 639 tioned locations, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by other material. (c) Mail to the Regional Director for Region 31 signed copies of said notice for posting by Skateboard Productions, Inc., if the Company is willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the Regional Director for Region 31, after being duly signed by the Respondent's authorized representative, shall be re- turned forthwith to the Regional Director. (d) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce any employee who has resigned from the Union and who, in the exercise of rights guaranteed in Section 7 of the Act, worked after his resignation at Skate- board Productions, Inc., during the economic boycott which began on February 7, 1977, by threatening him with union discipline, by bring- ing charges against him, by imposing fines on him, by threatening him with suit, or by institut- ing civil suits to collect such fines. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL rescind the fines levied against Ross Kelsay and Bruce McGregor because they worked at Skateboard Productions, Inc., after their resignations from the Union during the boycott which began February 7, 1977, and WE WILL refund any moneys they may have paid as a result of such fine, plus interest. NATIONAL ASSOCIATION OF BROADCAST EM- PLOYEES AND TECHNICIANS, LOCAL 531, AFL-CIO, CLC DECISION STATEMENT OF THE CASE STANLEY GILBERT, Administrative Law Judge: Ross Kel- say filed the original charge in Case 31-CB-2639 on July 17, 1977, a first amended charge therein on August 15, 1977, and a second amended charge therein on June 14, DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1978. Bruce McGregor and William Pecchi filed the origi- nal charge in Case 31-CB 2831 on February 8, 1978, a first amended charge herein on March 7, 1978, and a second amended charge therein on June 14, 1978. Based upon the above charges, the consolidated complaint in this proceed- ing was issued on June 19, 1978. On August 22, 1978, Mc- Gregor filed a third amended charge in Case 31-CB 2831 which omitted any reference to Pecchi. It is noted, at this point, that at the commencement of the hearing in this mat- ter, General Counsel's motion was granted to withdraw all allegations in the complaint with reference to Pecchi. The complaint, as amended, alleges that the National As- sociation of Broadcast Employees and Technicians, Local 531, AFL-CIO, CLC, hereinafter referred to as the Respon- dent, the Union, or NABET, violated Section 8(b)(1)(A) of the Act by its fining of Kelsay and McGregor and other related conduct with respect to them. By its answer the Respondent denies, inter alia, that its fining of Kelsay and McGregor violated the Act and, in addition, asserts affir- mative defenses which are considered below. Pursuant to notice, a hearing was held before me in Los Angeles, California, on August 29, 1978. Appearances were entered on behalf of all the parties and briefs were filed by the General Counsel and Respondent. Upon the entire record in this case and from my observa- tion of the witnesses as they testified, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED The facts and conclusion with respect to the Employer involved herein are contained in a stipulation of the parties set forth in section III, below. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits the following allegation in the complaint: Respondent, an affiliated local, organized under, and subject to the Constitution and Bylaws of, the National Association of Broadcast Employees and Technicians, AFL-CIO, CLC, herein called the International, is now, and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES ALLEGED A. Undisputed Facts The parties herein entered into the following stipulations (except for the footnotes which I have added): 1. (a) Skateboard Productions, Inc., herein called the Employer, is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of California, with an office and place of business located in Los Angeles, California, where it is engaged in the production of commercial films. (b) The Employer, during the calendar year 1977, sold and shipped goods or services valued in excess of $50,000 directly to customers located outside the State of California. 2. The Employer is now and has been at all times herein an employer engaged in commerce and in a business affect- ing commerce within the meaning of Section 2(6) and (7) of the Act. 3. Both Kelsay and McGregor were members in good standing of Respondent prior to February 14, 1977. 4. On February 7, 1977, McGregor and Kelsay were orally notified of Respondent's boycott of the Employer and cease working for the Employer. Thereafter, on Febru- ary 10, 1977, Kelsay and McGregor received written notifi- cation of Respondent's boycott of the Employer and that they cease working for the Employer. No contention is made herein as to the legality of Respondent's boycott.' 5. Prior to the boycott and thereafter, commencing on February 14, 1977, until on or about March 18, 1977, while the boycott was still in progress and while Respondent's notices were still in effect, Kelsay performed work for the Employer as director of photography and McGregor per- formed work as first assistant cameraman. 6. On the morning of February 14, 1977, NABET re- ceived from Kelsay and McGregor separate letters signed by McGregor and Kelsay respectively, addressed to the Lo- cal's executive board' and containing the following identi- cal language: "Pursuant to Article II, Paragraph 2.12 of the By-Laws of the Local. I hereby resign my membership in the local and NABET." 7. Respondent never acted on the tendered resignations of Kelsay and McGregor. 8. Two alleged purposes of article 11, section 2.6 of the International Constitution, according to Respondent are the following: (I) to insure that all dues and other valid charges due the Union are paid prior to acceptance of the tendered resignation: and (2) to prevent a member from resigning for a period not to exceed 60 days during a strike, boycott, or other economic sanction without the prior ap- proval of the Union. Respondent contends that this is an obligation or duty of membership imposed by section 10.11 of the Local's bylaws and other sections. 9. On March 11, 1977, Respondent's representative Favara brought and filed separate written charges against Kelsay and McGregor alleging that, by performing work on and after February 14, 1977, each violated sections 1.5 and 2.5 of the Union's International constitution and sections 10.11 and 10.19 of the Local's bylaws.' Kelsay received his copy of the charges on March 17, 1977, and McGregor received his copy on March 12, 1977. By letter dated April 1, 1977, Jay Kaplan, secretary-treasurer of the Local, noti- fied Kelsay and McGregor that a hearing on the charges would be held on April 26, 1977. 10. On April 26, 1977, Respondent's trial body, com- prised of the Local's executive board, met to consider and determine the charges. While Kelsay and McGregor each received written notice of the date, time, and place of the trial, neither attended the trial. I The parties agreed that by this they intended that there is no issue with respect to the legality of Respondent's boycott. 2 There is an issue as to what time of the morning said letters were re- ceived. 3 Although the charges referred only to their working on February 14, the variance between the wording in this sentence and the wording of the charges was considered by the parties to be immaterial in view of the facts contained in par. I of the stipulation and the footnote appended thereto. 640 NABET, LOCAL 531 II1. After the hearing, on April 26. 1977. Respondent's trial body determined that Kelsay was guilty of all charges, assessing fines against him totaling $10,027, and that Mc- Gregor was guilty of all charges, assessing fines against him totaling $6,742. 4 Respondent would contend it assessed said fines on the basis of Respondent's estimate of Kelsay's and McGregor's earnings in working for the Employer follow- ing institution of the boycott.5 12. On April 29, 1977, Respondent mailed to Kelsay and McGregor written notice of the trial body's decision and the respective fines, which notices were received by them several days later. The said notices advised Kelsay and Mc- Gregor of their right to appeal the decision of the trial body pursuant to the provisions of section 10.14 of the Interna- tional constitution. Neither Kelsay nor McGregor filed an appeal. 13. Kelsay and McGregor had each received copies of the International constitution and Respondent's bylaws at the time they became members of Respondent.6 14. By letter dated June 24, 1977, Respondent notified Kelsay and McGregor that Respondent would institute civ- il proceedings to collect the fines if they failed to pay the fines assessed against them. 15. On January 4, 1978. Respondent brought suit against Kelsay in the Superior Court of the State of California in Case No. C225532 to collect the above-described fine as- sessed against him by Respondent. On January 4. 1978. Respondent brought suit against McGregor in the Superior Court of the State of California in Case No. C225531 to collect the above-described fine assessed against him by Re- spondent. 16. The above-described civil suits are presently set for trial on February 15, 1979, and February 20, 1979. It was further stipulated that "prior to the negotiations leading up to the boycott, Respondent and the [E]mployer had never had a bargaining relationship. As a result of the breakdown of negotiations, Respondent called a boycott against the IE]mployer." B. The Events on February 14, 1977 The principal factual issue is whether or not Kelsay and McGregor started working on February 14, 1977, before or after their letters of resignation were delivered to the Union by Kelsay's then wife, Christy Kelsay Johns.7 It appears that Kelsay was employed by Skateboard (the Employer) as a director of photography' for a commercial film (on which shooting was started on December 29, 1976) and McGregor as first assistant cameraman. It further ap- pears that after a month's hiatus, shooting was resumed on ' Kelsay credibly testified that his total gross earnings for the period were approximately S8.000. The record is silent with respect to McGregor's earn- ings during said penod. I It was stipulated that the fines were assessed for working on February 14 and for approximately a month thereafter. I The General Counsel does not contend in his brief that either Kelsay or McGregor had insufficient notice of the provision of the constitution referred to in par. 8 hereinabove. I It appears that subsequent to February 14. 1977, Johns and Kelsa were divorced and that pnor to the hearing she married a man with the surname of Johns. There is no contention that Kelsay .as a supervisor within the meaning of the Act January 31. 1977. Neither Kelsay nor McGregor worked between February 7 (when they were advised of the boy- cott) and February 14. Their above-described letters of res- ignation were prepared after consultation with an attorney who apparently advised that they were free to ignore the boycott after said letters were delivered to the Union. Kel- say arranged with the Employer that he and McGregor would not start to work on the morning of February 14 until they received word that the said letters had been deliv- ered. The union office was not due to open until 9 a.m., and Kelsay and McGregor enlisted Johns to deliver the letters, shortly after the office opened, to Judy Wester. then admin- istrative assistant to Louis Favara,5 business manager of Respondent. It appears that the reason they did not deliver the letters themselves was that they wanted to avoid the delay of getting to the shooting location after delivering the letters. Instead, they went to the location at 7 a.m., the time the Employer called for the production crew to report. There is no explanation in the record as to why they re- ported so early when, according to the arrangements that had been made, they would not start to work until some time after 9 a.m. However, they both testified that they did no work until they received word that the letters had been delivered. Johns testified that she arrived at the union office about 9:15 a.m., delivered the letters to Wester, and then about 9:30 a.m. called Kelsay at a public phone in the Rock Store (which was adjacent to the shooting location) and notified him that the letters were delivered. Kelsay testified that he saw Favara about 7:30 a.m. on February 14: that Favara told him that "this was a boy- cotted set" and if he did any work on it he (Favara) would bring him up "on charges before the Executive Board of the Local"; that he told Favara that he had decided to resign and "carry on the picture"; and that Favara "reiterated" that if he (Kelsay) did work on the Skateboard picture he (Favara) would bring him up on charges. Kelsay further testified that he received a call from Johns around 9:30 a.m. at The Rock Store by which she reported that she had de- livered the letters; that he then notified the first assistant director that he was ready to go to work and that then "we started getting the cameras together and I started talking to the director about what he wanted for the first shot." Kel- say testified that he believes Favara had left by the time he got the call from Johns. McGregor testified that about 9:45 a.m., on February 14, Kelsay told him that he had received the call notifying him that the letters had been delivered and that "we could go to work." He further testified that he then started to work. He also testified that he saw Favara at the location, but avoided him. He was not questioned as to what time of the morning he saw Favara. In addition, McGregor testified that he did not observe any production work being done prior to 9:30 a.m. and that he spent most of the time prior thereto standing around drinking coffee and talking to other members of the crew. Favara. who had been advised that the Employer was resuming production at a location near the Rock Store, tes- tified that he drove to the location to determine whether 9 About a month prior to the hearing she became "assistant business rep- resentative for Iou Fa ara 641 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any members were working there and arrived at approxi- mately 8:30 a.m. on February 14. He further testified that he observed Kelsay standing about 50 feet from the store, doing nothing, and talked to him. According to Favara, he reminded Kelsay of the boycott and asked him what he was doing there, to which Kelsay replied, "I've resigned." Favara further testified that he told Kelsay that whether he resigned or not, charges were going to have to be brought against him. Favara also testified that he observed McGre- gor "in a van working on some camera equipment"; that he said to Kelsay that he was "going to have to talk to" Mc- Gregor; that Kelsay replied that McGregor had resigned, too; and that since McGregor was working he did not want to interrupt him so he did not talk to McGregor. Apparently, there were two other union members at the location whom Favara saw and it was stipulated that both were fined; one paid his fine in full and the other in part. Favara also testified that he stayed at the location about half an hour and then went to a gas station where there was a pay phone and called Wester ("sometime between 9:30 and 9:45"). He further testified that he told her that he "found four of our people were working on the crew," and that he had talked to three of them (Kelsay "and Mr. Pecchi and Mr. Wood") who said they had resigned. Favara also testified that, in the course of their telephone conversation, Webster made no mention of having received any resignations. Favara further testified that he then pro- ceeded to his office, where he arrived at approximately II a.m., and that some time after that Wester told him "she had gotten several letters of resignation" and Kelsay's wife had brought in letters of resignation for McGregor and Kel- say.'0 Wester testified that she had a telephone conversation with Favara about 9:30 or 9:45 and had not received the resignation letters at that time, but that they were delivered by Johns (Kelsay's then wife) about 10 or 10:15. In testifying as to what he observed McGregor doing at the location, Favara stated that he was "in the van opening boxes, most of them black, which are boxes associated with camera equipment." Kelsay, when called as a rebuttal wit- ness, testified that the camera equipment which was rented from "Claremont-Engle" was in orange and white boxes. Also, he testified that in his conversation with Favara, Favara made no reference to McGregor. Johns was a convincing witness and I credit her testi- mony that she delivered the resignation letters at approxi- mately 9:15 and informed Kelsay by telephone of the fact about 9:30. Based upon credited testimony of Kelsay and McGregor, I find that they did not commence work on Feb- ruary 14 until after their letters of resignation had been delivered to Wester. However, even though I do not credit Favara's testimony that he saw McGregor unloading cam- era equipment, I am of the opinion that he had reasonable grounds to believe that Kelsay and McGregor intended to work that day and to continue to work for Skateboard de- spite the boycott. Inasmuch as they did work on February 14 and continued to do so until the production was finished shortly after the middle of March, for which period they were fined, a major issue in this case is whether or not ° There is no evidence in the record as to whether or not any other letters of resignation were received. Kelsay's and McGregor's resignations became effective at the time they were delivered or whether they were not effec- tive until 60 days thereafter in accordance with the above- mentioned provision of the International's constitution. C. The Issues as to Whether the Fines Were Lawful Section 2.12 of the Local's bylaws provides as follows: "Any member in good standing who wishes to resign from the Local may do so by written application to the Executive Board." Article II, section 2.6, of the International constitution provides as follows: Resignation of Membership. Any member not in ar- rears in payment of dues or in the performance of any obligation or duty to the International Union or to any Local Union and against whom no charges are pend- ing may at any time request resignation from the Union. A request to resign shall be in writing ad- dressed to the Local Union. In the case where no ac- tion is taken by the Local Union, the resignations shall become automatically effective at the end of sixty (60) days. According to Respondent, two purposes of article 11, sec- tion 2.6, of the International constitution are the following: (I) to insure that all dues and other valid charges due the Union are paid prior to acceptance of the tendered resigna- tions; and (2) to prevent a member from resigning for a period not to exceed 60 days during a strike, boycott, or other economic sanctions without the prior approval of the Union. The record discloses that no action was taken on the res- ignations by the "Local" (Respondent) and that it treated the resignations as being effective on April 14, 1977 (appar- ently in accordance with the above-quoted 60-day provision in the constitution). The General Counsel contends, as is alleged in the com- plaint, that the above-quoted constitutional provision "un- reasonably restrained and coerced Kelsay and McGregor in the exercise of their rights guaranteed by Section 7 of the Act, in that the provision restricted Kelsay and McGregor from resigning their membership in Respondent without Respondent's approval, or for a period of sixty (60) days." On the other hand, Respondent, by its answer, asserts that the above-mentioned resignations were not effective until 60 days after they were tendered, according to the above- quoted provision in the constitution, and that said provision is a reasonable restriction on its members' right to resign and, therefore, lawful. Obviously, Respondent's position is based on the following exclusion contained in Section 8(b)(l)(A) of the Act: "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." Consequently, it appears that a reso- lution of the issues raised by the respective positions of the General Counsel and Respondent requires a resolution of the apparent conflict between the right to "refrain" guaran- teed employees in Section 7 of the Act and the above- quoted exclusion in Section 8(b)(1)(A) of the Act. While, in support of their respective positions regarding this apparent conflict, the General Counsel contends that the above- 642 NABET, LC quoted constitutional provision is an "unreasonable" re- striction on the right to resign from membership in the Union and the Respondent contends that it is "reasonable," neither introduced any evidence in support of their contra- dictory contentions. In effect, it appears that each assumed its position was self-evident. Unfortunately, no Court or Board decision was cited or was revealed by my research, which furnished a guideline as to whether such a period of time is or is not too restrictive." There is language in N.L.R.B. v. Granite State Joint Board, Textile Workers Union of America, Local 1029, AFL-CIO. [International Paper Box Machine Co.], 409 U.S. 213, 215-219 (1972), which would appear to support a finding that a union rule (apparently such as a restriction against resigning) only may be enforced against its mem- bers "who are free to leave the Union and escape the rule." In order to understand the full thrust of the Court's decision and the extent to which said language can be relied upon in deciding the issue before me, I believe it imperative to quote at length from said decision: We held in N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, that a union did not violate §8(b)() by fining members who went to work during a lawful strike au- thorized by the membership and by suing to collect the fines. The Court reviewed at length in that opinion the legislative history of §§7 and 8(bX I), and concluded by the a close majority vote that the disciplinary measures taken by the union against its members on those facts were within the ambit of the union's control over its internal affairs. But the sanctions allowed were against those who "enjoyed full union membership." Id., at 196. Yet when a member lawfully resigns from the union, its power over him ends. We noted in Scofield v. N.L.R.B., 394 U.S. 423, 429, that if a union rule "in- vades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating §8(bX I)." On the facts, we held that Scofield, where fines were imposed on mem- bers by the union, fell within the ambit of Allis-Chal- mers. But we drew the line between permissible and impermissible union action against members as fol- lows: §8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union inter- est, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule. Id., at 430 Under §7 of the Act the employees have "the right to refrain from any or all" concerted activities relating to collective bargaining or mutual aid and protection, " In General Teamnters Local 439, International Brotherhood of Teamsters, Chauffeurs, Warehousemen d Helpers of America (Loomis Courier Service. Inc.), 237 NLRB #220 (1978), Administrative Law Judge Jerrold H. Sha- piro did find that a 30-day waiting period was too restrictive. However, the Board found it unnecessary to pass upon the validity of the 30-day restric- tion since no exception was taken to the Judge's conclusion with respect thereto and the Board agreed with respondent therein that it would be super- fluous to reach the issue of the validity of the 30-day restriction. 643 as well as the right to join a union and participate in those concerted activities. We have no problem of con- struing a union's constitution or hiv laws defining or limit- ing the circumstances under which a member may resign from the union. [Emphasis supplied.] We have, there- fore, only to apply the law which normally is reflected in our free institutions-the right of the individual to join or to resign from associations, as he sees fit "sub- ject of course to any financial obligations due and owing" the group with which he was associated. Com- munications Workers v. N.L.R.B., 215 F.2d 835, 838. The Scofield case indicates that the power of the union over the member is certainly no greater than the union-member contract. Where a member lawfully re- signs from a union and thereafter engages in conduct which the union rule proscribes, the union commits an unfair labor practice when it seeks enforcement of fines for that conduct. That is to say, when there is a lawful dissolution of a union-member relation, the union has no more control over the former member than it has over the man in the street. The Court of Appeals gave weight to the fact that the resigning employees had participated in the vote to strike. We give that factor little weight. The first two members resigned from the Union from one to two months after the strike had begun. The others did so from seven to 12 months after its commencement. And the strike was still in progress 18 months after its incep- tion. Events occurring after the calling of a strike may have unsettling effects, leading a member who voted to strike to change his mind. The likely duration of the strike may increase the specter of hardship to his fam- ily; the ease with which the employer replaces the strikers may make the strike seem less provident. We do not now decided to what extent the contractual rela- tionship between union and member may curtail thefree- dom to resign. [Emphasis supplied.] But where, as here, there are no restraints on the resignation of members,s we conclude that the vitality of §7 requires that the member be free to refrain in November from the ac- tions he endorsed in May and that his §7 rights are not lost by a union's plea for solidarity or by its pressures for conformity and submission to its regime. The Union argues that its practice was to accept resignations of members only during an annual ten-day "escape period," during which time the employees were allowed to revoke their "dues check-off' au- thorizations. The Court of Appeals rejected that argument, saying there was no evidence that the employees knew of this practice or that they had consented to its limitation on their right to resign. 446 F.2d 369, 372. In view of the italicized language, I am of the opinion that the Granite State case cannot be relied upon to find that a union member is free to disregard any union restric- tion which curtails his right to resign therefrom. On the contrary, said underlined language expressly indicates that the Court did not consider that issue. Indeed, a majority of the Board in Machinists Local 1327, International Associ- ation of Machinists and Aerospace Workers, AFL-CIO, Dis- trict Lodge 115 (Dalmo Victor), 231 NLRB 719, 720 (1977), stated that the Supreme Court "expressly left open in its DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scofield and Granite Stale decisions" said issue,' Also in Local Lodge No. 994, International Association ol' Machin- isIs and Aerospace Workers. AFL CIO (O.K. 7Tool (Coin- pany, Inc.), 215 NLRB, 651, 653 (1974), the Board stated: Whether the Lodge might lawfully have placed rea- sonable restrictions on the circumstances in which a member could resign, and have enforced those restric- tions and strikebreaking sanctions against full mem- bers who returned to work during a strike, is a question not raised by the facts of this proceeding. In no case has the Board or the courts found all restric- tions against a member's right to resign invalid per se. In- deed, in a number of cases in which the Board has found restrictions against resignation invalid it has been because they were "overly restrictive," or did not provide a "reason- able accommodation" between the conflicting interests of the Union and members. Sheet Metal Workers' Interna- tional Association, Local Union No. 170, AFL-CIO, 225 NLRB 1178, fn. I (1976); Local 1384, United Automobile, Aerospace and Agricultural Implement Workers, UA W (Ev- Cell-O Corporation), 227 NLRB 1045, 1050 (1977): Oil, Chemical and A tomic Workers International Union, Local 6 - 578, AFL CIO (Gordy's Inc.), 238 NLRB 1227 (1978). In all of said cases, the restrictions against resigning were far more restrictive than the 60-day waiting period involved in this proceeding. Thus, such cases cannot be relied upon as precedents for disposing of the issue of the restrictions against resigning involved herein, but they tend to imply that a reasonable restriction would be valid. Thus, it appears that the state of the law, as it now stands, is that while a union may lawfully restrict a member from resigning to prevent erosion of its economic strength, it is far from clear when such a restriction becomes "overly restrictive," particularly as to the length of time imposed. If it were to be made dependent upon the circumstances of each case, such as a provision's being too onerous upon a particular member (a factor mentioned in the Granite Statre decision), it would conceivably follow that a restriction would be invalid as to one member but not as to another. Obviously the criterion of reasonableness is not sufficiently clear to inform unions or their members what their rights or obligations are with respect to a restriction for a given pe- riod of time, such as 60 days. It would appear that the only solution is for the Board to fix a period of time beyond which a union may not restrict its members from resigning, or for it to be establishing through the judicial or legislative process. I am of the opinion that it would be inappropriate for me to select such a period. Rather, it appears to me that I am limited herein to resolving the issue which the parties have raised: whether a period of 60 days is or is not unreason- able. I am forced to conclude that I cannot find that the General Counsel has proven by a preponderance of the evi- dence the allegation in the complaint that the 60-day re- striction in the Union's constitution with respect to resigna- tion of membership "unreasonably restrained Kelsay and McGregor." 2 In the Dalmo Victor case. the Board found it unnecessary to pass upon the issue since it further found therein that there was no union restriction on a member's right to resign. Concluding Findings Since I do not find that the aforesaid allegation has been proved, it would follow that Kelsay and McGregor had not effectively resigned their membership on February 14, 1977, and that, as full members, they were lawfully fined for working for Skateboard prior to April 14. 1977 (the eflfec- tive date of their resignations). N.L.R.B. v. Allis-C(halmers Mal,nfli/cturing ('o.. 388 U.S. 175, 181 (1967). Based upon said conclusions, it will be recommended that the consoli- dated complaint be dismissed. The effect of Section 10(b) on the allegations with respect to McGregor As an affirmative defense. Respondent contends that Sec- tion 10(b) of the Act is applicable to the allegations in the consolidated complaint with regard to McGregor. While it would appear that a disposition of this defense is superflu- ous in view of the above concluding findings, nevertheless, since I am not convinced that the Board will agree with said concluding findings, the affirmative defense with respect to McGregor will be fully considered. Respondent seeks the dismissal of Case 31 C'B 2831 (that part of the consolidated complaint based upon the charge filed by McGregor) on the ground that the charge in that case was filed outside the 6-month time period estab- lished by Section 10(b) of the Act. Respondent presents two arguments: (I) The McGregor case cannot stand by itself as the charge was brought 9 months after the actions complained of' and (2) The McGregor case cannot he saved through consoli- dation with the Kelsay case (('ase 31 CB 2639) which ad- mittedly is not time barred. Section 10(b) of the Act declares "It]hat no complaint shall issue based on any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such a charge is made. Respondent initially argues that "the fine [was imposed] on McGregor on April 26, 1977, and he received notice several days later. Whichever date is used for commence- ment of the six-month period, the time had elapsed when the original charge in his case] was filed February 8, 1978. By that time the fine could no longer he challenged ias an unfair labor practice." While the General Counsel admits the fining of McGre- gor occurred more than 6 months before the charge, he argues that Respondent's more recent threats to enforce the fines through suit in court are also violative of the Act and occurred within the 6-months period. In N.L.R.B. v. Bryan Mamt~lclturing ('omplw. 362 U.S. 411 (1959). the Supreme Court considered the effect of Sec- tion 10(b) on two types of cases which seek to rely in part on events that occurred prior to the 6-month time bar. The Court declared, "when occurrences within the six-month limitations period, in antd (/ thiemcselles may constitute, as a substantive matter, unfair labor practices," prior events. which may persuasively reveal the true character of the re- spondent's challenged conduct within the limitations pe- riod, may be properly considered. Where, however, conduct 644 NABET, LOCAL 531 falling within the limitations period can be found legally proscribable "only through reliance on an earlier [time barred] unfair labor practice," the respondent's prior con- duct cannot be used to "infuse with illegality" or cloak with illegality" conduct which would otherwise be considered lawful. Since complaints based upon such prior occurrenc- es, regardless of their possibly illegal character, would be time barred, "to permit the [prior occurrence] itself to be so used" would realistically serve to revive a legally defunct unfair labor practice. Thus, when a respondent's challenge recent conduct, con- sidered without regard to the earlier time barred conduct, can reasonably be considered lawful, so that a retrospective re- view is required to provide "all the operative facts" needed to prove a statutory violation, Section 10(b) will prevent the Board from concluding that such recent prior developments should be considered connected. "There the use of the ear- lier unfair labor practice is not merely 'evidentiary' since it does not simply lay bar a putative current unfair labor practice." Rather, it serves to cloak with illegality conduct otherwise lawful. In applying this rule to cases where a respondent union has fined members (for crossing a picket line) outside the 10(b) period, yet has sought to enforce the fines within the 10(b) period, the Board had repeatedly and consistently held that the 10(b) 6-month limitations period begins when the fine becomes final and is not revived or extended by the union's threat to instigate a suit or by instituting such a suit. International Association of Machinists and Aerospace Work- ers, AFL CIO (Union Carbide Corporation), 180 NLRB 875, 876-77 (1970), reaffirmed 186 NLRB 890: Communica- tions Workers of America and its Local 5550 (American Tele- phone and Telegraph), 187 NLRB 553 (1970); United Steel- workers of America, AFL-CIO and its affiliate Local 1114 (Harnischfeger Corporation), 187 NLRB 22, 23 (1970): Lo- cal No. 94-8, Communications Workers of America, AFL- CIO (Pacific Telephone and Telegraph Compan). 188 NLRB 291 (1971); Communications Workers of America, Local 9511 (Pacific Telephone and Telegraph Company), 188 NLRB 433, 435 (1971); Food, Drug & Beverage Warehouse- men & Clerical Employees, Local No. 595, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Certified Grocers of California, Ltd.), 218 NLRB 1286, 1291 (1975). The Board has noted that the institution of legal proceed- ings to collect fines is not unlawful in itself but that such a suit can constitute a violation only if it is found that the original fine was illegally imposed. United Steelworkers of America Local 1114, supra at 23. Also, the Board has con- cluded that: Thus, the claimed cause of action rests on pre-10(b) period conduct and it would be necessary to find that that conduct violated the Act in order to hold that Respondent's post-10(b) activities were unlawful. For the suit to enforce the fines can constitute a claimable violation of the Act only if a finding is made that the fines were illegally imposed. In making such a finding the Board would be doing prescisely what the Supreme Court condemned in Bryan, namely, finding a "viola- tion which is inescapably grounded on events predat- ing the limitations period." International Association of Machinists and Aerospace Work- ers (Union Carbide Corporation), supra at 877. To the extent Local 248., United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO (Allis-Chalmers Manufacturing Compan), 149 NLRB 67, 76, fn. 12 (1964), referred to by the General Counsel, is inconsistent with the above-stated well-established Board doctrine, it appears that it cannot be relied upon. Therefore, Respondent is correct in asserting that the McGregor case (Case 31-CB-2831), if it were in a com- plaint standing by itself, would be time barred, since the allegedly illegal fine occurred more than 6 months before the charge was filed, even though threats and filing of a suit to collect the fine occurred within the requisite 6-month period. Even if the McGregor case by itself could not have been maintained, General Counsel contends the allegations with respect to McGregor can be maintained because they are part of the consolidated complaint and can be based on Kelsay's timely charge. In support of this position, General Counsel relies on Stainless Steel Products, Incorporated, 157 NLRB 232, 234 (1966), in which the Board declared an unfair labor practice can be found on a charge in a consoli- dated case of like conduct occurring within 6 months prior to the charge whether or not the timely charge specifies the said unfair labor practice. In describing the nature and purpose of an unfair labor practice charge, the Fifth Circuit in Texas Industries Inc. v. N.L.R.B. 336 F.2d 128, 132 (1964), declared: [TJhe charge . . . serves merely to set in motion the investigatory machinery of the Board. It is largely for the benefit of the Board, not the respondent, so that it may intelligently determine whether and to what ex- tent an investigation is warranted. Consequently, the Board has considerable leeway to found a complaint on events other than those specifically set forth in the charge, the only limitation being that the Board may not get "so completely outside the charge that it may be said to be initiating the proceeding on its own mo- tion." N.L.R.B. v. Kohler Co., 220 F.2d 3 (C.A. 7, 1955). Stainless Steel presented a factual situation analogous to the instant case. In Stainless Steel a timely charge was ini- tially brought claiming violations of Section 8(aX 1), (2), and (3) of the Act. A case based upon an untimely charge alleg- ing the discriminatory discharge of one Robert Carrano was later consolidated with the case based on the timely charge. The Board rejected exceptions brought by the respondent therein that the Carrano violation should be dismissed on the grounds it was barred by Section 10(b) because the dis- charge of Carrano was related to and arose from the same situation as the conduct alleged to be unlawful in the timely filed charge. The Board added: "However, we do not base such finding on the charge in Case 31 -CA 34, which charge was served on Respondent more than 6 months after Car- rano's discharge." Respondent seeks to distinguish Stainless Steel on the ground that in the instant case, the factual connection be- tween the McGregor and Kelsay charges is not as close as were the timely and untimely charges in Stainless Steel and 645 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Kelsay charge relates solely on its face to Kelsay's own fine. The Board and the courts have, however, held that even where a charge alleges violations in respect to only one named employee, the charge can be sufficient to support a complaint alleging violations in respect to others when the conduct takes place in the same general course of the respon- dent's conduct. Truck Drivers, Oil Drivers and Filling Station and Platform Workers Local No. 705, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Associated Transport, Inc.) 209 NLRB 292, 303 (1974). The Fifth Circuit reached a similar conclusion in N.L R.B. v. Central Power & Light Company, 425 F.2d 1318 (1970). In the instant case, the original Kelsay charge, as amended, stated: Within the past six months, the above named labor organization, by fining resigned member Ross Kelsay, is restraining and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. In light of this language and in light of the fact that both fines arose out of the same set of facts (that Kelsay and McGregor contemporaneously attempted to resign on the morning of February 14 and commencing on that day worked for Skateboard despite the Union's boycott against it), the original timely Kelsay charge, as amended, seems sufficient upon which to base the allegations with respect to McGregor. Respondent, however, argues that the procedural device of consolidation cannot be used to thwart and circumvent the purposes of Section 10(b). While this appears to be a very persuasive argument, it is noted that the Fifth Circuit in Central Power & Light Company, supra at 1321, also con- sidered and rejected a somewhat similar argument conclud- ing: . . if the Company's argument against the thwarting of section 10(b) by consolidating is directed against consideration of events charged in the second charge together with the first, the argument is frivolous. Fant Milling, [360 U.S. 301 (1960)] holds directly that events subsequent to a charge may be included in the Board's complaint or used as evidence at trial. And the cases clearly indicate that when charges are consolidated, all evidence pertaining to either may be introduced at trial. E.g. N.L.R.B. v. Dal-Tex Optical Co., 5th Cir. 1962, 310 F.2d 58, 61. Finally, as to Respondent's due process argument sum- marily mentionnd at the end of its brief, the Fifth Circuit has implicitly rejected such an argument by declaring that "the charge is not a formal pleading, and its function is not to give notice to the Respondent of the exact nature of the charges against him.... This is the function of the com- plaint." Texas Industries, Inc. v. N.L.R.B., 336 F.2d 128, 132 (5th Cir. 1964). That court also held: The purpose of a charge is to set a board inquiry in motion. The inquiry may turn up events not specifi- cally contemplated by the charge, but the Board's duty to the public then requires it to complain of those events if they are unfair labor practices. The charge is thus not intended to be a detailed pleading or to spec- ify the issues ultimately to be raised before the Trial Examiner; the Board's complaint serves that function. Central Power and Light Company, supra at 1320. Thus, despite the fact that a complaint based upon the McGregor charge would be time barred standing by itself, a finding that his fine was unlawful could be based upon the timely Kelsay charge in the consolidated case, even though the latter charge did not specifically mentioned McGregor, if it had been found that 60-day restriction against resigna- tion of membership was unreasonably restrictive. Upon the basis of the foregoing findings of fact and upon the entire record of this case, I make the following: CONCLUSIONS OF LAW I. The Employer involved herein is, and has been at all times material herein, an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has failed to prove by a prepon- derance of the evidence that the fines imposed by Respon- dent against Ross Kelsay and Bruce McGregor were viola- tive of the Act as alleged. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 The consolidated complaint herein is dismissed in its en- tirety. " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 646