San Diego County District Council of Carpenters

SAN DIEGO C(OUNTY DISTRICT COUNCIl. OF ('ARPENII4RS San Diego County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Campbell Industries) and Sverre Seim. San Diego County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; and Shipwrights, Boatbuilders and Helpers, Carpenters Local Union No. 1300 and Thomas Ellison. Cases 21 CB-5718 and 21-CB 5751 June 28. 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 8. 1977, Administrative Law Judge James M. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondents and the General Counsel filed exceptions and supporting briefs and the General Counsel filed a brief answering Respondent's exceptions. 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 found that Respon- dents violated Section 8(b)(l)(A) by fining employees who had crossed a picket line before their resigna- tions, to the extent that the fines related to crossings made after the employees had resigned from Respon- dent Local Union. As fully set forth below, we do not agree with the Administrative Law Judge's appor- tionment of the fines to the preresignation and post- resignation picket-line crossings. The Administrative Law Judge also found that Re- spondent Local violated Section 8(b)(2) by threaten- ing to cause the discharge of certain employees for nonpayment of dues through the use of a union-secu- rity clause which was not in effect at the time the alleged dues obligation arose. We agree that the threat violated Section 8(b)(2). Finally, the Administrative Law Judge found that Respondent Local did not violate Section 8(b)(1)(A) by causing dues to be withheld, pursuant to dues- checkoff authorizations, for the period between col- lective-bargaining contracts. We disagree and find that by this action Respondent Local did violate Sec- tion 8(b)( I)(A), as set ftrth below. The facts of record are not in dispute. The Employ- ers involved herein. San Diego Marine Construction Corp. and Campbell Industries. are engaged in ship- building and were parties to a multiemployer-multi- union collective-bargaining agreement which expired September 30. 1975. Respondent Local was one of the unions who was party to the contract. After the collective-bargaining agreement expired a strike ensued. commencing October 1,. 1975, and end- ing February 13, 1976. A new agreement was reached effective February 13. 1976. and running through February 12, 1979. Both the old and the new con- tracts contained union-security provisions. Only the new contract, however, contained a dues-checkofl' provision, although both San Diego Marine and Campbell voluntarily honored dues-checkoff authori- zations during the period of the old contract. The checkoffs provided for the monthly deduction of dues as well as for accelerated payment of unpaid dues. They also provided fior a 15-day revocation period annually or 15 days before the contract's expiration upon written notice to both the Employer and Re- spondent Local. During the course of the strike, employees (of both Campbell and San Diego Marine) who were members of Respondent Local attempted to resign their union membership and return to work. Most crossed the picket line after sending a resignation letter but be- fore its receipt by Respondent Local. Some crossed the picket line on the day the letters were received by Respondent Local.' The International constitution governing the ac- tions of both Respondent Local and Respondent Dis- trict Council of Carpenters provides that a member may resign upon written notice and approval of a majority of those present at a regular meeting. How- ever, the constitution also provides that consideration of a resignation will not be undertaken if it is for the purpose of violating a trade rule-one of which is working behind a duly authorized picket line of a subordinate of the International. The constitution further provides for fines, and Respondent District Council's bylaws provide for a fine of $300 for a member crossing such a picket line. As a consequence of the picket-line crossing, the tendered resignations of those individuals who had crossed were rejected, and each was fined $300. The Administrative Law Judge concluded that em- ployees may resign at will from a union as long as they continue to meet the financial obligations owed 'The Administrative Law Judge inadvertently iound that the resignation letter of Richard Beckwith was received by the Local ti nion on D)ecember 9. 1975. The letter was received on December 8, 1975 243 NLRB No. 17 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to it as imposed by a collective-bargaining agreement. He further concluded that the employees herein had therefore effectively resigned from Respondent Local when their resignation letters were received. As stated above, he also found that the $300 fines, to the extent they represented a fine for the time period the em- ployees were no longer members, violated Section 8(b)(1)(A). To this extent the Administrative Law Judge therefore ordered reimbursement on a pro rata basis to those employees who had already paid the fine. We agree with the Administrative Law Judge that the resignations herein were effective when they were received by Respondent Local. Employees are not bound to observe a strike which commences while they are union members and are entitled to return to work, protected by Section 7 of the Act, if they first resign from the Union. 2 Where the resignation proce- dure is unduly restrictive, employees may effectively resign upon notification to the Union. Here it is clear that the resignation procedure which requires mem- bership approval without setting standards for such approval is unduly restrictive and, therefore, presents no bar to resignation at any time.3 While the employees thus had a right to resign their membership by simply notifying Respondent Local, and could not be fined for crossing a picket line after their resignation, we note that in all cases the employ- ees crossed the picket line either before the day, or on the same day, that Respondent Local received their resignations. The Administrative Law Judge recog- nized this and therefore ordered the pro rata reim- bursement formula adverted to above. We disagree with the Administrative Law Judge's formula under the circumstances of this case. Respon- dent District Council's bylaws permitted a fine of up to $300, and this fine was imposed upon all who crossed the picket line, regardless of the number of crossings. It is thus clear, as found by the Administra- tive Law Judge, that the multiple crossings were re- garded as a single crossing. Thus the fine can be said to have been imposed for the initial crossing (prior to resignation) just as easily as it can be said to apply to postresignation crossings. In these circumstances, we can see no basis for finding part of the fine to have been unlawfully imposed. We are also of course un- able to inquire into the reasonableness of a union fine since that is an internal union matter protected by the 2 Booster Lodge No. 405, International Association of Machinists & Aero- space Workers, AFL-CIO Boeing Co.] v. N.L.R.B., 412 U.S. 84 (1973); N.LR.B. v. Granite State Joint Board, Textile Workers Union of America, Local 1029, AFL-CIO [International Paper Box Machine Co.], 409 U.S. 213 (1972). 1The Administrative Law Judge's view that an employee "may, at will, join or resign from a union so long as he meets his financial obligations" is not a correct statement of the law. proviso to Section 8(b)(I)(A) of the Act.4 We shall therefore dismiss this allegation of the complaint.5 On April 1, 1976, the union wrote to San Diego Marine stating that, since certain employees were not in compliance with the union-security clause of the new contract because they owed back dues, they would not be able to work after April 5 without clear- ance from the Union. The money involved, which was, in fact, thereafter collected, was money for a period of time which included the strike when no col- lective-bargaining agreement was in effect. The Administrative Law Judge found that, to the extent the attempt to use the new union-security clause was for the purpose of collecting monies appli- cable to the precontract period, such attempt violated Section 8(b)(2) of the Act. The Administrative Law Judge ordered that the money received as a result of the unlawful threat for the period not owed by reim- bursed, but he inadvertently neglected to order that Respondent Local Union cease and desist from this activity. As stated above, we agree with the finding that the attempt was unlawful, and we shall add the appropriate cease-and-desist language to the Order. The Administrative Law Judge also found that the successful attempt to collect dues which accrued dur- ing the period of the strike from employees who had resigned during the strike did not violate Section 8(b)(l)(A). 6 He reasoned that, while the employees had effectively resigned from the Union, they had never canceled their outstanding checkoff authoriza- tion. He further reasoned that the checkoff authoriza- tions functioned as independent wage assignments which did not expire by operation of law with the resignations or in the absence of a union-security clause.7 The Administrative Law Judge concluded that it was reasonable to insist upon compliance with the terms of the agreed-upon checkoff cancellation procedure--i.e.. written notice to both the Union and San Diego Marine of intent to cancel with the notice to be given during the 15-day period prior to the expi- ration of the collective-bargaining agreement.8 As the affected employees had not given this notice, the Ad- ministrative Law Judge, as stated above, found no 4N.L. R.B. v. Boeing Co., et al., 412 U.S. 67 (1973). For a discussion of fines imposed upon employees who cross picket lines the same day that their resignation letter is received by the union, see Local 1012, United Electrical Radio & Machine Workers of America (UE) (General Electric Company),. 187 NLRB 375 (1970); United Construction Workers, Lo- cal 10, Christian Labor Association (Erhardt Construction Co. et a.), 187 NLRB 762 (1971). 6 The inadvertent reference in the Administrative Law Judge's Decision, sec. IV, C, par. 14, to "Section 8(bX2)" is hereby corrected to read "Section 8(bX)( A)." ' There was, of course, no union-security clause in effect during the hiatus penod between contracts. 8 Checkoff authorizations could also be revoked during an annual 15-day period prior to each anniversary of the authorization's execution. 148 SAN DIEGO COUNTY DISTRICT COUN(CIL. OF CARPENTERS violation in the collection of the dues for the hiatus period. Contrary to the Administrative Law Judge, we find that in the circumstances of this case the continued dues deductions for the hiatus period for those who had resigned their union membership violated Section 8(b)(1)(A) of the Act. In this connection we note that the dues-checkoff authorization itself states that it is furnished "in consideration of the benefits received and to be received by me as a result of my member- ship in the Union .... " In light of the specific lan- guage of the authorization we find that an effective resignation from the Local Union also revoked the checkoff authorization by operation of law.9 Accord- ingly, we conclude that the dues collection for the hiatus period violated Section 8(b)(1)(A). We shall therefore order that Respondent cease and desist from such activity and that it reimburse the affected employees for dues collected during the hiatus period after they had resigned. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Ship- wrights, Boatbuilders and Helpers, Carpenters Local Union No. 1300, San Diego, California, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening to cause the discharge of employ- ees for nonpayment of dues through the use of union- security clauses not in effect at the time the alleged dues obligation arises. (b) Causing dues to be withheld from employees who have resigned their union membership for peri- ods between collective-bargaining agreements. (c) In any other manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: The language of the authorizations and the legal import of that language could not be clearer. Hence, the dissent's effort to discount the significance of the parties' understanding as reflected by the wording of the authorization is. at best, unpersuasive. Thus, for example, our dissenting colleague is wrong in suggesting "most-if not all-checkoffs are authorized in consideration of the benefits the employees seek to gain from union membership," which ignores the agency shop. See N. L R. B v. General Motor Corp.. 373 U.S. 734 (1963). Our colleague simply has confused union membership with union representation, quite a different matter. Nor. our colleague's contrary view notwithstanding, is there any inconsistency between our decision here and our decision in Frito-Lay. Inc., 243 NLRB 137, issued today. Here, as re- flected by the wording of the authorization, the parties agreed to checkoff on the express understanding that union membership with its attendant benefits furnished consideration therefore. No such wording appears in the authori- zations in issue in Frito-Lay and no such agreement may be otherwise in- ferred or found on the facts of that case. (a) Reimburse or refund to the below-named em- ployees the dues which were unlawfully exacted by threat of discharge and which were for periods during which dues were not owed, plus interest at 6 percent per annum: Richard Beckwith Pat Krause Barry Gage William McAndrew (b) Reimburse or refund to the below-named em- ployees the dues unlawfully collected from them for the period between collective-bargaining agreements and after they had resigned, plus interest at 6 percent per annum, to the extent such dues have not been reimbursed in accordance with paragraph 2(a). above: Richard Beckwith Barry Gage John Edwards Pat Krause (c) Post at its offices and meeting halls in San Di- ego, California, copies of the attached notice marked "Appendix."' ° Copies of said notice, on forms pro- vided by the Regional Director for Region 21, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Deliver to the Regional Director for Region 21 signed copies of said notice in sufficient number to be posted by the employers involved herein, if willing. (e) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the remainder of the complaint be, and it hereby is, dismissed." MEMBER MURPHY, dissenting in part: This case involves the Carpenters Union's rules on resignations from the Union during a strike. Here the record shows that the employees who submitted resig- nations worked behind the picket lines several times before the Union received their resignations. They also worked behind the lines for several months after- wards. They were fined $300 each for working during the strike. Under these circumstances I do not find that the Union violated Section 8(b)( I)(A) of the Act by levying such fines. Also, contrary to the majority, I would adopt the Administrative Law Judge's conclusion that the Lo- 0 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." i As we have found no violations involving Respondent District Council. we dismiss the complaint with regard to it. 149 DECISIONS Of NATIONAL. I.ABOR RELATIONS BOARD cal did not violate Section 8(b)(l)(A) by causing dues to be withheld, pursuant to the provisions of appli- cable dues authorization, for a period between bar- gaining agreements but after the affected employees had resigned from that union. The employees in- volved in this instance, though submitting effective membership resignations, did not at any relevant time specifically revoke their outstanding checkoff authori- zations.' 2 There is no doubt that a membership resig- nation does not automatically cancel checkoff autho- rizations." But here the majority finds such automatic revocations based on the employees' resignations. In reaching this result my colleagues rely on language of the authorizations stating that "in consideration of the benefits received and to be received by me as a result of my membership in the Union I . ..hereby authorize . . ." the checkoff of dues. From this they conclude that as the checkoff was a quid pro quo for the benefits of membership, the checkoff automati- cally terminated with the membership. But it could be said that most-if not all-checkoffs are autho- rized in consideration of the benefits the employees seek to gain from union membership. 4 Employees obviously pay union dues and authorize their dues to be checked off in anticipation of some benefit to be gained from union membership. Consequently, if the majority's reasoning here is accurate, it would neces- sarily follow that in every instance resignation from a union necessarily revokes any outstanding dues checkoff. But, as I state emphatically, this is not Board law. Clearly the language on which my colleagues rely adds nothing of legal significance to the authorization forms.'5 Rather, it is simply an introductory phrase having no implications with respect to the continued efficacy or to the need for cancellations of the autho- rizations. If membership were intended to be the sine 1 However, I do agree with my colleagues and thus with the Administra- tive Law Judge that Respondent Local violated Sec. 8(bX2) by seeking the discharge of certain employees for nonpayment of dues for a subsequent period when no contractual union-security clause was in effect. " See International Chemical Workers, Local 143, AFL.CIO (Lederle Laboratories), 188 NLRB 705. 707 (1971); Frito-Lay, Inc., 243 NLRB 137, in which during a contractual hiatus period employees both resigned from the union and submitted checkoff revocations. Not only did the Board majority there fail to treat the resignations as revocations of the checkoff but also refused to give effect to the revocations themselves. "Obviously checkoff of dues solely to satisfy the obligation under an agency shop would not be included, since such checkoffs may be in lieu of membership. i Contrary to the effort of the majority in fn. 9 to detract from my posi- tion-thereby displaying their confusion-I am fully aware of the difference between union membership and union representation. In fact, the majority's efforts to find some "consistency" between the holdings here and in Frilo- Lay are clearly unavailing. By concluding in Frito-Lay, as they do, that absent some magic words such as "in consideration of the benefits of mem- bership" the statutory provisions are inapplicable and impliedly concluding herein that because of the inclusion of such language the statutory provisions are also inapplicable, they have incomprehensibly confused this aspect of Board law. qua non for validity of the authorization, it could have been so stated in the authorization-but that is not the case here. Consequently, I would find that the authorizations here in question were at all times ma- terial in full force and that Respondent Local's at- tempts to enforce the dues assignment were therefore not unlawful.'6 Accordingly, I dissent from the find- ing of a violation by said attempts. Finally, even under the majority's view of the checkoff issue, what we have here is basically a dis- pute concerning the meaning of certain contractual language: i.e., that quoted above from the authoriza- tions. There is no claim that Respondent Local pro- ceeded in bad faith. On the contrary, as there were outstanding, ostensibly unrevoked authorizations- and the local could hardly be expected to anticipate the majority's decision in this case' 7-it clearly had a colorable claim to have the disputed dues checked off. Thus, as Respondent Local acted reasonably and in good faith with respect to an apparently ambiguous contractual situation, there is no basis for finding that its equesting the checkoff was improper.'" Consequently, in view of the above, I would not find, as do my colleagues, that Respondent Local's attempt to force compliance with the disputed autho- rization violated Section 8(b)(I)(A) of the Act. *6 The majority position here is clearly at odds with the position taken by the majority in Frito-Lav, supra. There. as previously indicated. during a contract hiatus, i.e., when no union-security provision was in effect, employ- ees resigned from the union. but rather than holding that no dues were owing and none could properly be deducted by checkoff, the majority held not only that dues could be checked off pursuant to outstanding authorizations but also that the former members could not revoke the authorizations if the) wanted to See, also, e.g.. Penn Cork & Closures, Inc., 156 NLRB 411 (1965). where the Board held that after a deauthorization election outstanding checkoff authorizations become terminable at will, and thus could at any- time be revoked and thus rendered unenforceable. There is no suggestion in that case that employee resignations. which were also involved, automati- call) terminated the authorizations. In short, there is no legal basis for the majority's claim that, where employees resign from a union and there is no union-security clause in effect and thus no legal or contractual obligation to pay dues, outstanding voluntary authonrizations are, absent specific revoca- tion, necessarily canceled and unenforceable. I rather doubt that even if Respondent Local could anticipate Board results it would be of much help in situations like that here in issue. Thus, in the present case the majority is holding that during a contractual hiatus period a resignation from the Union automatically cancels out a checkoff authorization; on the other hand in Frito-Lay, supra, they are holding that during such period an explicit, written revocation by frmer union members does not revoke their outstanding authorizations. I suppose the majority can try to reconcile these apparent conflicting results. but the basis of such recon- ciliation is hardly a logical one. 'B See Morton Salt Company. 119 NLRB 1402 (1958); also Nathan's Fa- mous of Yonkers, Inc., 186 NLRB 131. 133 (1970). APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportu- nity to present evidence, the National Labor Rela- 150 SAN DIE;O) COUNTY DISTRIC1 COUlNCIL. OF CARPENTERS tions Board has found that we violated the National Labor Relations Act and we have been ordered to post this notice. WE WILL NOIr restrain or coerce employees who exercised the rights guaranteed them in Sec- tion 7 of the National Labor Relations Act in resigning their union membership and returning to work during the 1976 -77 strike against Camp- bell Industries and San Diego Marine Construc- tion Corp., by causing dues to be withheld from such employees for the period between collec- tive-bargaining agreements after they resigned. WEt WIl. NOT threaten to cause the discharge of any employee under the union-shop clause in our collective-bargaining contracts for the em- ployee's failure to pay dues for periods when there was no collective-bargaining contract in ef- fect. WE WIl.L reimburse, with interest, employees for dues collected under the above-described cir- cumstances. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. SHIPWRIGHTS, BOATBUILDERS AND HEILP- ERS, CARPENTERS LOCAL UNION NO. 1300 DECISION STATEMENT OF TIlE CASE JAMES M. KENNEDY, Administrative Law Judge: This case was heard before me on November 23, 1976.' in San Diego, California, pursuant to a consolidated amended complaint and notice of hearing issued on September 16 by the Regional Director of the National Labor Relations Board for Region 21. The consolidated amended complaint is based upon a charge in Case 21-CB-5718 filed by Sverre Seim on June II and upon a charge in Case 21-CB 5751 filed by Thomas Ellison on July 12 and thereafter amended on September 13. The consolidated amended complaint al- leges that the San Diego County District Council of Car- penters (herein called Respondent District Council) and its affiliate, Shipwrights, Boatbuilders and Helpers. Carpenters Local Union No. 1300 (herein called Respondent Local). have engaged in and are engaging in certain violations of Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. Issues There are four principal issues raised by the complaint. all arising from Respondent Local's treatment of employees who attempted to resign their union membership during the course of a strike against their employer and who thereafter I Hereinafter all dates are 1976 unless otherwise noted. returned to work. The first issue to be resolved is whether or not the employees' resignations were legally effective. If so. then I must determine whether or not in May. Respondent District Council. at the behest of Respondent Local. unlaw- fulls imposed a $300 fine on each employee who crossed the picket line after his resignation from Respondent L.ocal. Le- gally separate from the resignation issue, but factually re- lated, are the questions of whether or not beginning in March Respondent Local unlawfully caused back dues which had accrued during the course of the strike to be withheld from the poststrike paychecks of tour emploNees of San [)iego Marine Construction Corp. herein called San Diego Marine): and whether or not in April Respondent Local unlawfully threatened to cause the discharge of four San Diego Marine employees because they failed to pay union dues for the period of the strike. Respondents con- tend that none of the employees involved had effectively resigned from Respondent Local because the tfailed to comply with the International Union's constitutional provi- sions relating to resignations: that the fines were specifically authorized by the union constitution and bylaws and were lawful because the attempted resignations were ineffective: that any dues deducted from the employees' paychecks were lawful because they were deducted pursuant to valid signed checkoff authorizations: and finally, the> contend that they were privileged to ask San Diego Marine to dis- charge employees who were delinquent in their dues be- cause the employees were in violation of the union-shop provisions of the applicable collective-bargaining agree- ment. The General Counsel responds arguing that the Union's constitutional provisions regarding resignation are excessively restrictive under the federal labor policies as de- fined by the Supreme (Court. that the fines were therefore illegal to the extent that the! covered picket-line crossings after the employees' resignations, that the dues deductions were improper because the5 were for months during the hiatus period between collective-bargaining contracts and thereafter, and that the act of resigning from the Union withdrew the consideration giving their checkoff authoriza- tions validity. All parties were given full opportunity to participate, to introduce relevant evidence. to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. Upon the entire record of the case, including the volumi- nous exhibits. and from my observation of the witnesses, I make the following: FINDIN(iS OF FA('I 1. lIl BUSINESS OF Iit EMPI.OYERS Respondents admit, and I find. that Campbell Industries (herein called Campbell) and San Diego Marine are en- gaged in the business of constructing and selling ships and other oceangoing vessels at their shipyard facilities located in San Diego, California. They further admit that each of these employers during the past calendar year sold and shipped goods valued in excess of $50,000 directly to cus- tomers located outide Calitornia. Accordingly, they admit. and I find. that (Campbell and San Diego Marine are em- 151 DECISIONS OF NATIONAL LABOR RELATIONS BOAR[ ployers engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act.' II. lHI ILABOR OR(iANIZA'IIONS INVOI.VE D Respondent District Council and Respondent Local both admit, and I find. that at all times material, they were, and are, labor organizations within the meaning of Section 2(5) of the Act. I11 . TIHE AI.I(iEI) UNFAIR I.ABOR PRA(II(ES A. The Strike Prior to October 1975, Respondent Local had collective- bargaining agreements with both Campbell, by virtue of Campbell's membership in a multiemployer bargaining unit known as the Shipyard Industry of San Diego, and San Diego Marine, through a separate agreement. In relevant part, the agreements with each employer were identical. On September 30, 1975, the 1972-75 agreements expired and on October , 1975, a strike commenced at San Diego Ma- rine, Campbell, and other employers bound by those agree- ments. It ended on February 13, 1976. At that time the employers each entered into new agreements; Campbell ap- pears to have signed an individual agreement rather than being bound by a multiemployer agreement as in the past. The duration of the new contracts is from February 13, 1976, to February 12, 1979. The new agreements, like the expired agreements, are essentially identical. Accordingly, where appropriate, reference to one of the contracts will also serve as reference to the other. Both the 1972-75 and 1976-79 agreements contain iden- tical, relatively standard union-shop clauses.4 In essence, the clause requires each bargaining unit employee, as a con- dition of employment, to become or remain a member in good standing of Respondent Local on the 31st day follow- ing the commencement of employment or following the ef- fective date of the agreement, whichever is later. It further requires bargaining unit employees to remain members in good standing for the duration of the agreement and that failure to comply with that requirement may result in the employee's termination. It also contains certain safeguards not relevant here. 2The General Counsel asserts in her brief that San Diego Marine is a subdivision of Campbell. If that is so, there is no record evidence of that fact. 3Also parties to these agreements are the International Association of Machinists, District Lodge 50, and its Local Lodge 389, and the Orange Belt District Council of Painters No. 48. Their participation in the collective- bargaining contract is not relevant to any discussion herein involving the Carpenters. 4 Contrary to the General Counsel's assertion on page 10 of her brief that the clause is a maintenance-of-membership clause, it is clear that it is a union-shop clause. The clause, art. 4, sec. I, reads in pertinent part: Each employee who is now or is hereafter employed in a job classifica- tion covered by this Agreement shall, as a condition of continued em- ployment, become or remain a member in good standing of the Union on the thirty-first (31) day following the commencement of such em- ployment or following the effective date of this Agreement, whichever is later. Such employees shall remain members in good standing of the Union for the duration of this Agreement as a condition of their em- ployment. Failure of any employee to comply with the provisions of this Section I may upon written request of the Union result in the termina- tion of such employee. The 1972-75 agreement contained no provision for dues deduction. However, both Campbell and San Diego Marine honored employees' dues checkoff authorization orms ex- ecuted in favor of Respondent Local. Apparently this prac- tice *was limited to Respondent Local and none of the other unions party to this agreement followed this practice. How- ever, the union-security provision of the 1976 79 contract contains an additional section providing or dues checkoff. That section (art. 1 , sec. 4) is set forth below in the oot- note.' B. The Provisions ( Re'spondetI ' (on. tiltuion and Baws.s The constitution and bylaws of the United Brotherhood of Carpenters and Joiners of America, as established by the International Union, are binding upon both Respondent District Council and Respondent Local. Section 47A of that constitution sets forth the conditions and the manner in which a member may resign from the Union. In essence it permits a member to withdraw or sever his connection with the Union by submitting a written resignation to the local Union which shall then submit the resignation to its mem- bership. If a majority of the local's members present at such a meeting vote to accept the resignation, the resignation may be approved. The full text of section 47A is set forth in the footnote below.' However, section 471 of the constitu- tion directs local unions not to accept resignations of mem- bers when it is known that the resignation has been sub- mitted for the purpose of violating the union's trade rules.7 One of the trade rules involved is set forth in section 55A Upon receipt of an authorization signed b an employee to whom this Agreement is applicable, the Company shall, pursuant to the provisions of such authorization, deduct from such employee's earnings, on the first pay- day in each month. the amount owed to the Union by each such employee for Union dues; however, should any such employee have no earnings due him or her on the first payday in any month or should such employee's earnings be less than the amount such employee owes the Union. the deduc- tion shall be made from the emploee's earnings on the next succeeding payday on which his or her earnings are sufficient to cover the amount of dues owed. The Company shall promptly mail to the Union a check made payable to the Union fobr the amount of dues the Company has withheld during such month, which shall be accompanied by a list, in duplicate, con- taining the names of employees and the amount deducted from each such employee's earnings. Upon receipt of such check and list, an official of' the Union shall sign one copy of such list, acknowledging receipt thereof, and promptly return it to the Company. 6 Sec. 47A reads: A member can withdraw or sever his connection with the United Broth- erhood by resignation in writing, and it shall require a majority of the members present at a regular meeting to accept a resignation. A mem- ber who resigns can only be readmitted as a new member. A member wishing to withdraw or sever connection with the United Brotherhood shall present the resignation in wnting, which shall be laid over two weeks for investigation. A member resigning shall be given a Resigna- tion Card, which shall indicate an honorary withdrawal from the United Brotherhood. Such card shall be furnished by the General Secretary on application by the Local Union. on payment of Fifty Cents 5 0c) for each card. Sec. 47B reads: A Local Union shall not accept the resignation of a member when it is known that same has been submitted fbr the purpose of violating Trade Rules. When a member resigns, or is expelled, or an applicant as cov- ered by the Constitution and Laws of the United Brotherhood. who works to the detriment of the United Brotherhood. the ocal Union or District Council may place a special initiation fee against such person, not to exceed Fifty Dollars ($50.00) over their regular initiation tee for new or ex-members as provided for in their By-Laws. 152 SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS (10) of the constitution. That rule prohibits members from working behind picket lines which are duly authorized by any subordinate body of the International--i.e.. a district council or a local union. In addition to prohibiting resigna- tion, the rule also provides that such a member may be fined, suspended, or expelled by a majority vote of members of the appropriate local union or by the delegates to the district council having jurisdiction of the offense. Similarly, Respondent District Council's bylaws and trade rules provide in section 43, rule 13 that any member charged and found guilty of crossing or working behind a duly authorized picket line established by any subordinate body of the International may result in a fine, a suspension, or expulsion. The rule provides that the recommended fine for a violation of this rule be $300. or expulsion, or both. C. The Ernployees and the Checkoff Authorizations D. The Resignations and the (Crossing o the Picake Lines Each of the employees involved in this dispute sent Re- spondent Local letters attempting to resign their union membership and then returned to work. crossing the picket line to do so. The following columns show the chronolog 3 for each employee: San Diego Marine Name Date Resigned Date Union Rec'd Letter Date Picket Line Crossed The parties stipulated that prior to October I, 1975. the date the strike commenced, the following employees were in the bargaining units of Campbell and San Diego Marine: Campbell Romaldo Baca Donald Evans Joe Pacheco Sverre Seim Jose Serpa Frank Storey San Diego Marine William McAndrew 8 Richard Beckwith John Edwards Barry Gage Pat Krause Each of the above-named employees was, at the time the strike began, a member in good standing of Respondent Local. Each of these employees had executed a dues check- off authorization form. They were all executed between 1969 and 1974. None had been revoked.9 sThe General Counsel has alleged that Respondent Local violated only Sec. 8(bX2) insofar as McAndrew is concerned: he is included in the alleged unlawful threat discussed in F. infra. Accordingly, except where noted, the following discussion does not apply to McAndrew. eThe language of the checkoff authorization form provides for monthly deduction of dues as well as for accelerated payment of unpaid dues. It further provides for an annual 15-day revocation period as well as for a revocation period 15 days prior to the expiration of the applicable collective- bargaining agreement upon written notice to both the Employer and Re- spondent Local. In pertinent part the text of the authorization form is as follows: Now, THEREFORE, in consideration of the benefits received and to be received by me as a result of my membership in the Union, . the undersigned, of my own free will and accord, hereby authorize and direct said company to deduct my monthly membership dues in said Union from my first pay of each month for the current month. If for any reason, I should become delinquent in the payment of my dues to the Union, I hereby further authorize and direct the Company, upon writ- ten request from the Financial Secretary of the Union stating the num- ber of months' dues owed by me to the Union and the amount thereof, to deduct one (I) month's delinquent dues from each pay period until my delinquent dues, as shown in the aforesaid written request from the Financial Secretary of the Union, are fully' paid. All such deductions, both current and delinquent, shall be promptly transmitted to the Fi- nancial Secretary of said Union and, in any event, before the end of the current calendar month. The amount of said dues per month shall be determined by official action of said Union and certified to the Com- pany by the Financial Secretary of the Union. I agree that the Company and the Union shall be under no liability to me for deduction of dues made and determined in the above manner. This authorization may be revoked by me after one year from the R.Beckwith J.Edwards R . Gage P.Krause 12/5/75 12/5/75 12/5/75 12/7/75 12/9/75 12/9/75 12/9/75 12/9/75 12/8/75 12/8/75 12/9/75 12/8/75 Campbell R.Baca D. Evans J. Pacheco S.Seim ,. _Serpa F. Storey 2/4/76 1/12/76 1/16/76 1/12/76 1/27/76 1/13/76 2/5/76 1/16/76 1/21/76 1/16/76 1/3n/76 1/16/76 2/4/76 1/13/76 1/19/76 1/13/76 1/28/76 1/14/76 As can be seen in each case. except for Gage. each em- ployee returned to work immediately after mailing his resig- nation letter but before Respondent Local received it. Gage crossed the picket line the same day Respondent Local re- ceived his resignation. Respondent Local's records, accord- ing to Business Representative Mitchell G. Ybarra, show that union observers saw the San Diego Marine employees cross the picket line on the dates shown above, hut that at Campbell they did not see Serpa until February 2. Baca until February 5. and Evans and Seim until January 14. date thereof or at any termination date of the applicable collective agreement. whichever occur sooner. by my giving, at an) time during but not before fifteen (15) days prior to such sooner date. written notice thereof to the aforesaid Union and to my employer. Such notice shall not affect a revocation of this authority until the expiration of the year for which it was given. or until the termination date of the applicable collectlle agreement, whichever occurs sooner. In the event no such notice is so served by me prior to the expiration of the year f-or which the authority s given, or prior to the termination date of such applicable collective agreement, whichever occurs sooner. this authorization shall continue for like periods of one year, or the termination date of the applicable collective agreement. whichever occurs sooner, with the right reserved to me to revoke the same in the same manner and within the same time limits and with the same effect as pros ided hereinabove for the initial and original authorization period. 1I3 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pacheco and Storey were both observed crossing the line as noted above. E. Respondent Local's Action on the Resignations On December 9, 1975, a regular meeting of Respondent Local was held. The minutes of that meeting contain the following reference: "Several letters of resignation were read out from Bros. who wished to go back to work at Campbell's and San Diego Marine. M.S.C.'° to follow the rulings of the constitution in this regard (not to accept)."'' Respondent Local's office manager, C'arol Stevens, testified that after she received the resignation letters, she merely held them for appropriate action by Respondent Local, and that in each case Respondent Local, acting pursuant to the constitutional prohibition against approving resignations of members who intended to return to work by crossing the picket lines, refused to approve the resignations. Accord- ingly, she continued to regard them all as members. Re- spondent Local apparently did not present the Campbell resignations of January and February to the membership. I believe it fair to presume that this was not done because Respondent Local's officers decided to treat them in the same manner as the membership had treated those pre- sented on December 9, 1975-not to approve them. The testimony also shows that Respondent Local, during the course of the strike, did not pursue dues collection as ac- tively as it might have, but that at the end of the strike, it began to demand unpaid dues. Stevens testified that since the resignations had not been approved, she treated those individuals as if they were still members and charged their dues acounts accordingly. F. The Discharge Threat and the Collection of Dues by Payroll Deduction As noted, the strike ended on February 13, and on that date or shortly thereafter all the strikers returned to work. By letter dated April I. Respondent Local's financial secre- tary, Joe C. Cortez, advised San Diego Marine's employee relations manager, Stephen Puente, that 13 employees, in- cluding Beckwith, Gage, Krause, and McAndrew, were not in compliance with the union-security clause of the new agreement and would not be eligible to continue to work for the Company after April 5 unless they obtained a clear- ance from Respondent Local. By interoffice letter, Puente notified the affected employees of Respondent Local's de- mand. Also on April I, Cortez wrote Betty Nelson. who is apparently San Diego Marine's payroll clerk, listing 42 members whose dues were in arrears.'? He directed her "to catch them up I month per week." By letter dated April 6, Cortez advised Puente that because of an attorney's opinion Respondent Local would allow all of the members in ar- rears to pay back dues at I month per week until the back 10 "M.S.C." means "moved. seconded and carried." " It appears from the minutes that some Campbell employees had at- tempted to resign as of December. These individuals are not identified and apparently are not a part of the General Counsel's case herein, because the Campbell employees involved here did not resign until January and Febru- ary 1976. '' The letter contains the names of 44 individuals; two were not in arrears. dues were fully paid. By letter dated April 28. Cortez ad- vised San Diego Marine that II employees were still in arrears, including Krause, Beckwith, and McAndrew, and asked the Company to "catch them up I week at a time until up to date .... " Puente testified that upon receipt of the April I letter to Nelson, San Diego Marine began to deduct back dues as requested. He testified that the only time the Company pays back dues is when the Union so requests. Otherwise, he says, the Company only pays the Union dues for the month which is currently due. He further testified that the Com- pany did not generally question the correctness of Respon- dent Local's claims for back dues. Moreover, according to Puente, the Company did not care if Respondent Local's demand for dues covered the period of the strike. Accord- ing to him, that was a matter between the employee and the Union. and if the employee had a problem with the situ- ation the employee could deal directly with the Union about it. The General Counsel has not alleged that Respondent Local committed any violation of the Act in its attempts to collect back dues from the Campbell employees. Examina- tion of Respondent Local's dues record cards shows that, with the exception of Baca, all of the employees involved herein, whether employed by San Diego Marine or Camp- bell, paid all the back dues requested. None was actually discharged. G. The Fines Immediately after observing each of the Campbell and San Diego Marine employees cross the picket line, Respon- dent Local began following its procedures to discipline these employees, under section 43, rule 13 of Respondent District Council's bylaws.' No party asserts that the proce- dures followed were not in accordance with the applicable constitutional provisions and appropriate bylaws. Thus, fol- lowing Respondent Local's procedures as approved by Re- spondent District Council. citations were issued to the em- ployees in December 1975, and January and February 1976. Thereafter, notices of alleged violations were sent to each employee, trial dates were set, and trials were held before Respondent District Council's trial committees. In each case the trial committee found the employee guilty and recommended a $300 fine, the maximum permitted un- der the rule. On May 19 Respondent District Council ap- proved the decisions of its trial committees and on May 20 sent each employee a letter notifying him that he had been found guilty and had been fined $300. In addition the May 20 letter called the employees' attention to section 45N of the International's constitution which provides generally that fines must be paid within 30 days and that failure to pay such a fine will result in expulsion from membership. H. Ronuildo Baca While all of the foregoing applies to Romaldo Baca, a statutory employee at the time the strike began, Respon- 1 Beckwith, Edwards, Gage, and Krause were also charged with violaling section 55A (10) of the International constitution As noted in B. supra, this provision also prohibits members from crossing an authorized picket line. 154 SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS dent Local contends that Baca became a supervisor at some point and that even assuming that it committed violations of the Act with respect to statutory employees, the com- plaint should be dismissed insofar as it alleges a violation involving Baca because of Baca's status as a supervisor within the meaning of Section 2( 1) of the Act. Baca testified that he had been employed by Campbell for 12 years and that he was the most highly skilled crafts- man in the bargaining unit, holding the position of "lead- man." At the beginning of the strike on October 1, 1975. he went to work for National Steel Shipbuilders (NASCO). another shipyard located in San Diego. While there he was in a bargaining unit represented by Respondent Local and paid dues to Respondent Local for the months of Novem- ber and December 1975. The record does not show when he left NASCO. but Baca testified that he had left NASCO prior to submitting his February 4 resignation letter. On February 5, 1976, he returned to Campbell as a "working foreman"; he no doubt knew he would hold such a position when he submitted his resignation letter. He testified that there is no difference between the duties of a leadman. his earlier position, and those of a "working foreman." Article 5, section 3, of both the old and new agreements, demon- strates that working foremen and leadmen are covered by the collective-bargaining contract and are part of the bar- gaining unit. Because of the skill level of the working fore- man/leadman, he is required to instruct and help out those who are not as skillful. Baca testified that he did not have the power to hire or fire or even recommend the hiring or firing of employees. Nor did he have the authority to disci- pline or promote or recommend the promotion of employ- ees. Further, he did not have the power to increase their wages, adjust grievances, grant time off, or authorize over- time. He said that as a working foreman he spent 6 hours per day doing manual labor and the only duties he per- formed which other employees did not perform involved the design of furniture and cabinets and laying out the work to be done. He testified that the appellation "working fore- man" was just a title giving recognition to his skill level. He has been making cabinets for 27 years, and others simply do not have the experience and skills he has acquired over that period. Respondents adduced no evidence to refute Baca's testimony. Based on the foregoing I conclude that Baca, in holding the job of leadman or working foreman, was not a supervi- sor within the meaning of Section 2(11) of the Act. Later, on June 7, 1976, well after the completion of the transac- tions involved herein, Baca became Campbell's company foreman. There is no question that the job he currently holds is supervisory within the meaning of Section 2(11) of the Act. IV. ANALYSIS AND CONCLUSIONS A. The Resignations It is axiomatic that Section 7 of the Act, as modified by Section 8(a)(3) and 8(b)2), gives employees the right to join or refrain from joining a labor union. That right necessarily includes the right to resign from the union. However, the proviso of Section 8(aX3) limits that right and imposes on the employee the obligation to join (or remain a member of) a lawfully recognized union if his employer and the union enter into a collective-bargaining agreement containing a lawful union-security clause. Such a clause obligates the employee to join, after a grace period, and remain a union member as a condition of employment as long as the con- tract remains in effect. Upon the expiration of the agree- ment, the obligation ceases, at least insofar as the union may enforce it by threatening to cause the employee loss of employment. Colonie Fibre Co., 69 NLRB 589 (1976), 71 NLRB 354 (1976), enfd. 163 F.2d 65 (2d Cir. 1947): New York Shiphuilding Corp., 89 NLRB 1446 (1950): New Jersey Bell Telephone Co., 106 NLRB 1322 (1953), enfd. sub nonm. Communications Workers o America, CIO v. N.L. R. B.. 215 F.2d 835 (2d Cir 1954): Public Service Electric and Gas Co., 120 NLRB 355 (1958).'4 Even where the contract remains in effect, however, union membership in this context is defined by Section 8(a)(3) and 8(b)(2) and not by the union's constitution. Un- der Section 8(a)(3) and 8(bX2) an employee will be deemed a member in good standing if he has tendered "the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership." See Union Starch & Refining Compare,, 87 NLRB 779 (1949). enfd. 186 F.2d 1008 (7th Cir. 1951), cert. denied 342 U.S. 815 (1951). In Union Starch the Board found that the union violated Sec- tion 8(b)(2) and the employer Section 8(a)(3) when the em- ployer, at the union's request, discharged employees who had tendered dues and intitiation fees but who refused to comply with certain of the union's constitutional require- ments for membership. Thus, the Board said at 784 785: We therefore read proviso (B) [of Section 8(a)(3)1 as extending protection to any employee who tenders pe- riodic dues and intitiation fees without being accorded membership. If the union imposes any other qualifica- tions and conditions for membership with which he is unwilling to comply., such an employee may not be entitled to membership, but he is entitled to keep his job. Throughout the amendment to the Act, Congress evinced a strong concern for protecting the individual employee in a right to refrain from union activity and to keep his job even in a union shop. Congress care- fully limited the sphere of permissible union security, and even in that limited sphere accorded the union no power to effect the discharge of nonmembers except to protect itself against "free rides." We cannot say, as did the Trial Examiner, that by refusing to comply with the Union's requests the em- ployees had demonstrated that they "were entirely un- willing to become members" and therefore that "mem- bership" had not been "denied" to them. The employees were willing to comply with the only term or condition for membership which we think can, un- der the provisos, legally be enforced by discharge-the tender of the periodic dues and the initiation fees uni- formly required. 14 If there is an "unmarred continuity" between contracts containing es- sentially identical union-security clauses, the obligation to remain a union member continues from the first contract to the second. National Lead Com- pany, Titanium Division, 106 NLRB 545 (1953). 155 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under the doctrine of this case, the union may only use, as justification for a discharge or attempted discharge, the employee's failure to pay dues and initiation fees. More- over, those moneys must be due and owing under the col- lective-bargaining agreement, and not for periods before or after the term of the contract or for a period covered by the contract, but during which the employee was not employed. See N.L.R.B. v. Spector Freight System, Inc., 273 F.2d 272 (8th Cir. 1960), cert. denied 362 U.S. 962: International Union of Operating Engineers, Local No. 139 (T. J. Butters Construction), 198 NLRB 1195 (1972): Cortman Builders Supply Co., Inc., 101 NLRB 327 (1952): Monsanto Chemical Co., 97 NLRB 517 (1951); Local 714, United Autoworkers (General American Aerocoach), 90 NLRB 239 (1950). From Union Starch arose the doctrine of "financial core" membership--a quasi-agency shop under which employees subject to union-shop or maintenance-of-membership clauses satisfy their contractual obligation to the union by paying dues and initiation fees but do not actually join the union. Hershey Foods Corporation, 207 NLRB 897 (1973), enfd. 513 F.2d 1083 (9th Cir. 1975). Compare N.L.R.B. v. General Motors Corporation., 373 U.S. 734 at 742 (1963). This kind of membership is distinguishable from the union membership described by the Supreme Court in a series of cases dealing with union discipline. Beginning with Scofield v. N.L.R.B., 394 U.S. 423 (1969), the Court dis- cussed and developed the law of union disciplinary mea- sures taken against union members. In Scofield the Court said at 429, footnote 5: The Court has held that the "policy of the Act is to insulate employee's jobs from their organizational rights." Radio Officers' Union v. National Labor Rela- tions Board, 347 U.S. 17, 40 (1954). As an employee, he may be a "good, bad, or indifferent" member so long as he meets the financial obligations of the union secu- rity contract. Thus the Board has found an unfair la- bor practice by union and employer where an em- ployee was discharged for violation of a union rule limiting production. Printz Leather Co., 94 NLRB 1312 (1951). But as a union member, so long as he chooses to remain one, he is subject to union discipline. The Court in Scofield, at 429-430, went on to say: .. it has become clear that if the [union] rule invades or frustrates an overriding policy of the labor laws, the rule may not be enforced, even by fine or expulsion, without violating §8(bXI). * * . . §8(bXl) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union mem- bers who are free to leave the union and escape the rule. The Court further refined the "escape" or resignation rights of union members in N.L.R.B. v. Granite State Joint Board, Textile Workers Union of America, Local 1029, AFL-CIO, 409 U.S. 213 (1972), and Booster Lodge No. 405, International Assn. of Machinists and Aerospace Workers v. N.L.R.B., 412 U.S. 84 (1973). In both instances strikers re- signed from their union in order to escape union discipline when they either abandoned the strike or refused to embark upon it. The unions attempted, as here, to discipline them for failing to support the strike. In Granite State. the Court citing the above-quoted Sco- field language held that Section 7 of the Act permits a union member the right to avoid discipline, but noted that the case did not present the question of whether or not the resignations were proper under the union's constitution. In Booster Lodge, also a case where the efficacy of the union's resignation rules was not presented, the union argued that its constitution prohibited members from strikebreaking, arguing that even if the member resigned, it had the right, under contract law, to discipline him for violating the obli- gation he undertook at the time he became a member. The Court rejected the union's contention saying that the case was essentially the same as Granite State. It appears to me that if there is a conflict between the Union Starch/lHershey and Scofield/Granite State/Booster Lodge doctrines, they are easily reconciled. As long as an employee meets his union-security obligation by paying the appropriate moneys, he is a member of the union within the meaning of Section 8(a)(3) and 8(b)(2). If he chooses, as is right under Section 7, to become a constitutional member, he may do so. Likewise, if he is already a constitutional member, Section 7 permits him to resign even though Sec- tion 8(a)(3) and 8(b)(2) imposes a financial obligation on him under the terms of the union-security clause. Thus, as I read the statute, together with the case law interpretation, it is clear to me, despite the union resignation rule question left open by the Supreme Court in Granite State and Booster Lodge, that an employee may, at will, join or resign from a union as long as he meets his financial obligations to it as imposed by the collective-bargaining agreement." This being the case, I find that each of the employees involved herein effectively resigned his constitutional membership in Respondent Local at the time his resignation letter was re- ceived by Respondent Local, despite any union constitu- tional limitation which might otherwise apply. B. The Fines Having found that each of the employees listed in section I. D., supra, had effectively resigned his constitutional mem- 1 In International Union, United Automobile, Aerospace, Agricultural Im- plement Workers of America (UA W), AFL CIO and its Local 899 (John I. Paulding, Inc.), 142 NLRB 296, decided in 1963 and which was the third in a series of Paulding cases, the Board, in explaining its second decision which had been reviewed and commented upon by an appellate court, said at 300, fn. 3: It was the intention and purpose of the Board to hold that the employ- ees in issue had effectively terminated their union membership irrespec- tive of whether they had complied with union resignation rules or not. But as that position was apparently not clearly set forth in that decision of the Board, we now specifically hold here, on the basis of the facts in the first Paulding case, as we did in the second Paulding case . .. that these employees had effectively terminated their union membership. Accordingly, it appears to me that the Board, long before the Supreme Court's decisions in Granite State and Booster Lodge, was of the view that Sec. 7 permitted "at will" resignations despite limitations against resigning which may have appeared in union constitutions. See also the Board's deci- sion in Hershey Food Corp., supra. Compare Sheet Metal Workers' Interna- rional Association, Local Union No. 170 (Able Sheet Metal Product, Inc.), 225 NLRB 1178 (1976). 156 SAN DIEGO COUNTY DISTRI(T COUNCIl OF CARPF.NTERS hership in Respondent l.ocal. it follows that the fines vio- lated Section 8(b)(1)(A) of the Act to the extent that they were levied for postresignation conduct. In Booster Lodge No. 405, Internalional Assn. of Machinist.s vN. L. R. B.. 412 U.S. 84, the Supreme Court. per curianl, in a factual setting indentical to that presented here, affirmed the Board and the Court of Appeals which had found the fines for postres- ignation picket-line crossings to be unlawful. See also local Lodge No. 1994, International A.ssociation of Machinists and Aerospace Workers. AFL.-CIO (O.K. Tool Company. Inct.). 215 NLRB 651 (1974). As the General Counsel notes, however. Respondents have not, in either their accusations or decisions, attempted to distinguish between preresignation conduct and postres- ignation conduct. Acting under the belief that all of the employees were constitutional members, it fined each ot them $300, even though the employees crossed the picket line at least once before resigning, and many times there- after. It is therefore reasonable to conclude that Respon- dents regarded the multiple crossings as a single violation. Under that circumstance it appears proper for Respondents to rescind (or remit, if paid) on a pro rata basis that amount of the $300 fine for crossings which took place after receipt of the resignations. Moreover, the Respondents' records of the fines should be expunged and changed to show that the fines were levied only for the preresignation crossings. See Booster Lodge No. 405, International ,4ssociation of Machitl- ists and Aerospace Workers. AFL CIO (The Boeing Com- pany), 185 NLRB 380, 383 (1970). C. The Withheld Dues and the Threat The more difficult questions are whether Respondent Lo- cal violated Section 8(b)(2) by attempting, in its April I letter to San Diego Marine, to collect dues under the union- security clause of the new contract, as well as whether Re- spondent Local violated Section 8(b)(l)(A) by obtaining dues deductions from certain San Diego Marine employees' paychecks for the period of the strike. On April 1, Respondent Local wrote two letters to two different San Diego Marine officials. One, sent to Labor Relations Manager Puente, listed the names of 13 employ- ees who were delinquent in their dues and, citing the union- shop clause of the new agreement, warned the Company that all 13 would not be eligible to work after April 5 if they did not get a clearance from Respondent Local. Four of these 13 are alleged discriminatees here: Beckwith, Gage. Krause, and McAndrew. The first three had, as noted, re- signed their membership. The General Counsel concedes on page 10 of her brief that McAndrew was a constitutional member. The dues record cards show that on March 14. all three had I month's dues deducted from their paychecks. The Union, following its practice. applied that amount to the oldest outstanding month, October 1975. Thus, since dues are payable on the first of each month, as of April 1. 1976, those three were 6 months in arrears. Notices of ar- rears had been sent to Beckwith on February 11 (5 months), and March 10 (6 months). An arrears notice was also sent to McAndrew on March 10 (6 months).'" On April 5 11 Six-month arrears notices were also sent to Beckwith and McAndrew on April 13. Apparently each had paid I month's dues after his first 6-month notice. McAndrew paid 2 months' dues. The dues receipt shows that they were applied to the dues owed tbr November and December 1975. Thus, like the other three. McAndrew. as of April 1, was also 6 months in arrears. All four, therefore. were charged with dues delinquencies for a period of time which included the period of the strike when no collective- bargaining contract was in effect. The second letter sent on April 1. to the payroll depart- ment. listed the names of 42 others who were also behind in their dues. It appears from the face of the letter that none owed dues prior to January 1976. Thus at worst, they were only 4 months behind. The 6-month arrearage is significant to Respondent Lo- cal because section 45L of the international constitution provides that a member must be stricken from membership if he fails to pay his dues by the end of the sixth month. Thus. it is clear that insofar as Cortez' April I letter sought to utilize the union-shop clause of the 1976 79 con- tract to collect dues for the precontract period. such an attempt was unlawful. See N. L. R. B. v. Spector Freight Sys- tenm, Inc.. 273 F.2d 272 (8th Cir. 1960): Operating Engineers Local 139 (T. J. Butters Construction), 198 NILRB 1195 (1972): New ork Shipbuilding Corporation, 89 NLRB 1446 (1950). This conclusion is not affected in any way by the resignations of Beckwith, Gage, and Krause, or the lack of a resignation by McAndrew. McAndrew, of course, as a constitutional member, owed the dues for that period. but Respondent Local was not privileged to collect it by resort to the union-shop clause. The other three owed Respondent Local dues from the expiration date of the old contract through the date of their resignations, but as in McAn- drew's case, Respondent Local was not privileged to threaten job loss under the union-shop clause to get them. Between the date of their resignation and the 30th day after the 1976-79 contract became effective, the5 were not obli- gated to pay an) moneys whatsoever. Nonetheless, as a result of the threat, as well as through the use of the previously executed dues-checkoff authoriza- tions, Respondent collected back dues during that period. On April 6, Cortez, acting on an attorney's advice, wrote Puente, implicitly withdrawing his April 1 threat, telling Puente that Respondent Local would "allow the men to pay all back dues at one (I) month per week" until fully paid. I must presume that the letter was directed at the situation of the 13 employees, and to some extent, at least. was an attempt to mitigate the threat. I note that the letter was not sent to any of the 13 employees, much less the 4 alleged in the complaint. Moreover, the April I letter had already resulted in the desired effect-all four employees mentioned in the complaint had by April 6 paid Respon- dent Local a sufficient amount to avoid loss of their jobs." Accordingly, I cannot find the April 6 letter to have miti- gated the threat. With regard to the allegation that the March. April, and May dues deductions from the paychecks of San Diego Ma- rine employees Beckwith, Edwards, Gage, and Krause were unlawful, I am not persuaded. It is true that each of these individuals had resigned his membership from the Union 7 Beckwith is a possible exception. His dues record card shows an illegible entry made in April and applied to the November 1975 dues That April payment may have been made after April 6. More likely it was made before t57 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during the strike. However, there remained on file with San Diego Marine valid and unrevoked dues-checkoff authori- zations. Those forms clearly permitted the Union to ask for accelerated payment of back dues. When Respondent Local demanded such back dues on behalf of these employees (in the case of Edwards, by its April I letter to the payroll department: in the case of Beckwith, Gage, and Krause by its April 6 and 28 letters to Puente) it was merely demand- ing payment pursuant to a procedure authorized by the employee. The General Counsel has not cited any case, nor has my research revealed any, holding that previously authorized dues deductions covering a hiatus period between contracts are unlawful. To be sure, the four employees involved here had resigned their constitutional memberships, but they had not revoked their checkoff authorizations. Such a situ- ation is not inconsistent with the concept of financial core membership under Hershey Foods Corp., supra. The resig- nations merely permitted the employees to avoid union dis- cipline. They may have wished, for reasons known to them. to continue paying dues to the Union. One reason might have been to avoid a reinstatement fee when the union-shop clause again forced them to rejoin. It may be argued, however, that the resignations were tantamount to rescission of the dues-checkoff authoriza- tions. Assuming that the employees so intended, I believe it reasonable for the Employer (who does not appear to have been notified) and the Union to insist that the employee follow the procedure agreed to by the employee: give 15 days' written notice to both the Union and San Diego Ma- rine of intent to cancel the checkoff authorization prior to the expiration of the contract. Since no employee followed the prescribed procedure to cancel the checkoff authorizations, the only possible way they would have been rendered ineffective is by operation of law.'" The first way is, as suggested above, by considering the resignations from membership as a cancellation of the authorization. However, in District Lodge No. 99 and Lodge No. 2139, International Association of Machinists and Aero- space Workers (General Electric Company), 194 NLRB 938 (1972), the converse was argued. There the employee fol- lowed the procedure to cancel his dues deduction authori- zation and then argued that the cancellation should be con- sidered a resignation from membership. The Board rejected that argument, saying he did not "clearly convey" his intent to resign. Likewise, the four employees here did not "clearly convey" their intent to cancel the authorizations, and I can- not regard them as canceled. A second possible way is to regard the dues checkoff au- thorization as an integral part of the union-security clause of the contract. Under such analysis, if the union-security clause was rendered inoperable because of a hiatus, then the checkoffs would likewise be inoperable. When a new agreement containing a new union-security clause came into effect then, it would be argued, its use to collect hiatus 18 Brotherhood of Railway. Airline and Steamship Clerks, etc. (Yello, Cah Company of Tampa), 205 NLRB 890 (1973), enfd. 498 F.2d 1105 (5th Cir. 1974), is not apposite. In that case the dues-checkoff authorizations were cancelled by operation of law upon the employee's departure from employ- ment. In the instant case no affected employee left his employment with San Diego Marine. dues would be an unwarranted extension of the clause. Colontie Fibre Co., supra: New York Shipbuilding Corp., su- pra, Operating Engineers Local 139 (T. J. Butters Construc- tion), supra; N.L.R.B. v. Spector Freight System, Inc., supra. The problem with this approach is that nowhere in the statute are the two connected in such a way so that the authorization may be considered an integral of the union- security clause. Section 8(a)(3) and 8(b)(2) provide that unions and employers may negotiate a contract requiring union membership as a condition of employment-assum- ing the appropriate grace period. Section 302(c)(4) merely grants an exception to the criminal prohibition against em- ployer payments to unions and permits the employer's di- rect payments of dues, as long as voluntarily authorized by the employee.? Indeed, in The Associated Press, 199 NLRB 1110 (1972), affd. 492 F.2d 662 (D.C. Cir. 1974), a case involving the Board's Collyer deferral 20 doctrine, the Board had occasion to review a similar issue. Neither the old nor the new collec- tive-bargaining contracts contained a union-security clause, but they did contain dues-checkoff authorization clauses. During the economic strike between the contracts, some employees resigned their union membership and cancelled their checkoff authorizations. The employer honored the checkoff cancellations, but the union viewed the cancella- tions as untimely and therefore ineffective. In the arbitra- 19 Even where the authorization is defective, it is not clear that such deduc- tions are unlawful under Sec. 8. See Salant & Salant, Inc. 88 NLRB 816. 817-818, where the Board said: The basis for the Trial Examiner's finding in this connection is that the only requirement under Section 302 of the Act for checkoff is a voluntary written authorization, and that that requirement was satisfied. Thus, the Trial Examiner's theory appears to be that a determination of whether checkoff is an unfair labor practice under Section 8 of the Act turns on whether the checkoff in question meets the requirements of Section 302 of the Act, and that a failure to satisfy such requirements constitutes per se a violation of Section 8. This is tantamount to saying that Section 302 created, in effect, a new specific unfair labor practice where none existed before. fn. omittedl We disagree with this interpretation of the impact of the Section 302 amendment to the Act. In our opinion, the lmitations on checkoff in Section 302 iesre intended neither to create a new unfair labor practice, nor even to be considered in determining whether checkoff violates Section 8 of the Act. We reach this conclusion for the following reasons: (i) The original House Bill as reported and passed specifically made a checkoff that did not meet certain requirements an unfair labor practice under Section 8(aX2), but this provision was eliminated from that section in conference, and from the Bill as finally enacted, thereby implying that unlawful checkoff was not intended to me made a per se unfair labor practice; (2) The restrictions on checkoff appear instead in Title III of the Act, with a similar implication; and (3) Section 302 itself establishes what was plainly intended to be the method of enforcing and preventing violations of its provisions, viz, criminal sanctions and injunction by U.S. District Courts, upon prosecution and petition for injunction by the Attorney General. Thus, the Act itself and its legislative history compel the conclusion that Congress did not intend the newly created limitations on checkoff in Section 302 to have any impact on the unfair labor practice jurisdiction of this Board under Section 8, so as either to create or not create a per se violation of Section 8 solely on the basis of a violation of those limitations. In our opinion, the intent of Congress was rather to leave undisturbed the application by the Board to checkoff, as well as other conduct not specifically proscribed by amendments to Section 8 its preexisting criteria for determining whether such conduct as is engaged in constitutes a violation of the broad proscriptions of Section 8. The intent was neither to supplement, nor to detract from, such proscription of checkoff as Section 8 imposes completely apart from, and independently of. the restnrictions on checkoff in Section 302.Emphasis supplied.] 2o Co/ller Insulated Wire. 192 NLRB 837 (19711. 158 SAN DIEGO COUNTY DISTRICT COUNCIL OF CARPENTERS tion which resulted, the arbitrator, agreeing with the union, found the cancellations untimely and held that the em- ployer owed dues on behalf of those employees for the con- tract hiatus period. He specifically found that the checkoff authorizations were wage assignments in favor of the union which "survived the expiration of the contract and the em- ployees were bound by [their] terms as was the employer." The Board found that the arbitrator's decision under the Spielberg test' was not clearly repugnant to the purposes and policies of the Act. The Court of Appeals affirmed. From Associated Press two concepts are clear. First. union-security clauses and dues-checkoff authorizations are clearly not so closely connected that the latter requires the former for life. Second, the Board does not regard the en- forcement of a dues-checkoff authorization for hiatus pe- riod dues as necessarily violative of the Act.22 Under these circumstances I am unable to find that Respondent Local violated Section 8(b)(2) by asking the Employer to pay hi- atus period dues in cases where a valid dues-checkoff au- thorization remained in effect. V. THE REMEDY Having found that Respondent Local and Respondent District Council have engaged in certain unfair labor prac- tices, I shall recommend that they be required to cease and 21 Spielberg Manufacturing Company. 112 NLRB 1080 (1955). 22 A different result is obtained where "coercion" is involved. Pre-Cast Slab and Tile Co., 88 NLRB 1237: Federal Stores Division of Spiegel. Inc. 91 NLRB 647; Bayly Manufacturing Company, 103 NLRB 1337 (1953). and American Screw, Company, 122 NLRB 485 (1958). A violation will also be found where dues are deducted without the employee's written authoriza- tion. Guadalupe Carrot Packers, dbh/a Romap Carrot Company. 228 NLRB 369 (1977). desist therefrom and to take certain affirmative action de- signed to effectuate the policies of the Act, including dues reimbursement, with interest" where dues were exacted by means of an unlawful threat, as well as rescission and re- fund of the fines, with interest,24 expunging and correcting the members' records to reflect only the lawful portion of the fines. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CoN(I.uSloNS OF LAW 1. Campbell and San Diego Marine are employers en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Local and Respondent District Council are labor organizations within the meaning of Section 2(5) of the Act. 3. By threatening employees with discharge pursuant to an inapplicable union-security clause for failing to pay dues for a period when dues were not owed, Respondent Local violated Section 8(b)(2) of the Act. 4. By fining and causing employees to be fined fbr cross- ing a picket line after they had resigned from the Union, Respondent Local and Respondent District Council vio- lated Section 8(b)( 1 )(A) of the Act. 5. By causing dues moneys to be withheld pursuant to valid dues deduction authorizations for a period between collective-bargaining contracts, Respondent Local did not violate any section of the Act. [Recommended Order omitted from publication.] 23 SeaJarers International Union of North .4merica, (rea lkev District. AFL-CIO. 138 Nl.RB 1142 (1962). 24 Id 159