Local 1012, Electrical Workers

LOCAL 1012, ELECTRICAL WORKERS 375 Local 1012, United Electrical, Radio & Machine Workers of America (UE) and General Electric Company. Case 31-CB-511 December 21, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 4, 1970, Trial Examiner Maurice Alexan- dre issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the attached Trial Examiner's Decision . Thereafter, the General Counsel, Respondent, and the Charging Party filed exceptions to the Trial Examiner's Deci- sion together with supporting briefs , and the Charging Party filed an answering brief in response to the exceptions filed by Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby confirmed . The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case . The Board adopts the Trial Examiner's findings of fact, but adopts his conclusions and recommendations only to the extent consistent with its Decision herein. At issue is whether Respondent violated Section 8(b)(1)(A) of the Act by imposing $500 fines 1 against 37 of its members (employees of General Electric) because they crossed a duly established picket line at General Electric during an economic strike. In finding a violation, the Trial Examiner concluded that the fines were imposed unlawfully because they were not assessed in accordance with certain criteria ennuciat- ed by him which included, inter alia, imposition of fines pursuant to a formula duly adopted and announced by Respondent prior to the time the fined employees first crossed the picket line. i The fines of four individuals were subsequently reduced 2 The Charging Party contends that it should have been permitted to adduce evidence which assertedly would ( 1) contravene the admitted allegation in the complaint that all of the fined employees were members of Respondent until their resignations therefrom , and (2) indicate that the procedures followed by Respondent in imposing its fines deprived certain of the fined employees of due process of law We reject these contentions. The record shows that the complaint was not amended, and that at the hearing, the General Counsel specifically disavowed any intent to litigate this case on the basis of such contentions Instead, he tried his case on the basis of the allegations in the complaint which, as dominus hits, he was We find, solely for the reasons set forth in Booster Lodge No. 405, IAM (The Boeing Company), 185 NLRB No. 23, that inasmuch as Respondent's members were free to resign their memberships at will, the fining of all 37 individuals for acts committed after their effective resignations from Respondent was violative of Section 8(b)(1)(A) of the Act. These 37 individuals, however, resigned at varying dates and, as discussed hereinafter, fall into three general groups for both purposes of finding the violation and for effectuating a remedy. For purposes of our findings, however, we find that their resignations were effective upon receipt of notification by the Union. Of the 37 employees, 14 had effectively resigned from the Union prior to their crossing of the picket line, and consequently the imposition of any fines upon this group was violative of Section 8(b)(1)(A). With respect to a second group of employees, eight in number, who first crossed the picket line and returned to work on the same day as the Union received their letters of resignation, absent any affirmative evidence establishing that their letters were received prior to the time they crossed the picket line, we conclude that their resignations were not effective until the close of business the day of receipt. Their fines, therefore, are unlawful only to the extent that they were predicated on postresignation conduct. With respect to the remaining 15 employees who resigned on varying dates after they had crossed the picket line and returned to work, the Respondent did not violate the Act by fining them for such activity prior to the effective dates of their resignations. However, such discipline cannot be imposed against them for conduct engaged in subsequent to their resignations, and to that extent Respondent's conduct was violative of Section 8(b)(1)(A). We shall order Respondent to cease and desist from engaging in such conduct, including attempts to recover all the illegally imposed fines through court proceedings, and to reimburse and remit to the first group of 14 employees all fines collected, and to reimburse and remit to the remain- ing 23 employees a prorata portion of fines collected so that what remains reflects only preresignation conduct.2 ORDER Pursuant to Section 10(c) of the National Labor entitled to do Local 282, International Brotherhood of Teamsters v. N. L R B, 339 F 2d 795 (C.A 2); Tulsa General Drivers, Warehousemen and Helpers Local Union 523 (Rocket Freight Lines Co), 176 NLRB No. 94. Moreover, the body of Section 8(bxl)(A) is not intended to reach the conduct of a labor organization in imposing and enforcing a fine upon its members for crossing a lawful picket line. N LR.B v. Allis-Chalmers Mfg. Co., 388 U S. 175 Nor does the Act authorize the Board to evaluate the fairness of union discipline meted out to protect a legitimate union interest. IAM, Local 504 (Arrow Development Co), 185 NLRB No. 22. Consequently neither procedural due process nor the reasonableness of a fine need concern us here 187 NLRB No. 46 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Local 1012, United Electrical, Radio & Machine Workers of America (UE), its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees who had resigned from, and were no longer members of, Respondent in the exercise of the rights guaranteed them in Section 7 of the Act, by imposing fines against such employees because of their postresignation conduct by working at the Ontario, California, plant during the period of the strike which began on February 27, 1969, and ended on April 13, 1969, or by threatening to seek or seeking court enforcement of such fines. (b) In any like or related manner, restraining or coercing employees in the exercise of rights guaran- teed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds necessary to effectuate the policies of the Act. (a) Reimburse and refund to any employees described in paragraph 1(a) of this Order, who have paid fines under the circumstances described in that paragraph, the amount of said fines imposed because of postresignation conduct, plus interest at the rate of 6 percent per annum,3 in accordance with our Decision herein. (b) Post at its office and meeting hall and at the Ontario, California, plant of the General Electric Company, if the Company is willing, copies of the attached notice, marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 31, shall, after being signed by an authorized representative, be posted at the aforemen- tioned locations, in customary places, including all places where notices to Respondent's members and to employees are customarily posted, and reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by other material. (c) Notify the Regional Director for Region 31, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. MEMBER BROWN, dissenting in part: I would find, for the reasons set forth in my dissent in The Boeing Company, supra, that Respondent did not violate the Act by imposing fines on any of the employees in this proceeding. I would, therefore, dismiss the complaint in its entirety. 3 See Seafarers International Union of North America, Great Lakes District, AFL-CIO, 138 NLRB 1142 4 In the event that the Board's 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 be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " 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 employees who had resigned from the Union and who, in the exercise of their rights guaranteed in Section 7 of the Act, worked at the Ontario plant during the February-April 1969 strike, by imposing fines, or by threatening to seek or by seeking court enforcement of said fines, against such employees. WE WILL reimburse nonmembers above men- tioned for any fines they may have paid to us for working during the said strike. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed to them in Section 7 of the National Labor Relations Act. LOCAL 1012, UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA (UE) (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wil- shire Boulevard, Los Angeles, California 90024, Telephone 213-824-7351. TRIAL EXAMINER'S DECISION MAURICE ALEXANDRE, Trial Examiner: This case was heard in San Bernardino, California, on March 24 and 25, 1970, upon a complaint issued on January 16, 1970,1 alleging that Respondent Union had violated Section 8(b)(IXA) of the National Labor Relations Act, as amended . In its answer, Respondent denied the commis- i Based on an initial and an amended charge filed on August 28, 1969, and January 12, 1970, respectively, by General Electric Company, hereafter LOCAL 1012, ELECTRICAL WORKERS sion of the unfair labor practices alleged. The basic issue presented is whether or not Respondent violated Section 8(b)(1)(A) by imposing certain fines upon employees because they crossed a picket line during a strike called by Respondent. Upon the entire record, my observation of the witnesses, and the briefs filed by the parties, I make the following: FINDINGS AND CONCLUSIONS 2 THE UNFAIR LABOR PRACTICES A. The Evidence The Company operates a plant in Ontario, California, where it is engaged in the manufacture of electrical appliances. During 1969, the Company and Respondent were bound by a collective-bargaining agreement covering the Company's employees. Approximately 850 of the employees are members, and about 220 are not.3 On February 27, 1969,4 following a strike vote by its members, Respondent began an economic strike and established a picket line at the plant. At various times from and after that date, the 37 employees named in the complaint 5 crossed the picket line and went to work. All of these employees sent letters to Respondent resigning their membership. Some sent letters before they first crossed the picket line, but others worked behind the picket line for varying periods before sending their letters of resignation. Article XX, Section 2 of Respondent's constitution states that each member shall pledge himself to support Respondent and its constitution, and shall declare his solidarity with his fellow members. Article XXI provides that any member found guilty of improper conduct, of wronging a fellow member, or of committing an offense against the constitution or best interests of Respondent "shall be fined, suspended or expelled" following a trial. Saldana, Respondent's president at the time material herein, testified that he could not recall that anything was said at the strike-vote meeting of February 27 regarding penalties against a member who worked behind the picket line. He further testified that prior to the strike, he never warned any member regarding such a penalty. McDaniel, a former officer of Respondent, was asked whether subse- quent to the strike-vote meeting, anything was said about the possibility of fining employees who crossed the picket line. In response, she testified that at "a meeting," International Representative Gray referred to a Supreme Court decision permitting unions to fine members who crossed a picket line, and stated that "in the event that we called the Company Initially, the Regional Director ordered consolidation of the instant case with two other cases (31-CB-513 and 31-CB-535) However, on March 9, 1970, the Regional Director issued an order severing and withdrawing the complaint to the extent that it related to the said two cases, at the hearing herein, the General Counsel was permitted to perfect the severance and withdrawal by amending the consolidated complaint so as to eliminate the allegations relating to those cases 2 No issue of commerce is involved The complaint alleged and the answer admitted facts which, I find, establish that the Company is an employer engaged in commerce within the meaning of the Act I further find that Respondent is a labor organization within the meaning of the Act 3 The agreement does not contain a union-security provision 4 All dates referred to hereafter relate to 1969 unless otherwise stated 377 go on strike," fines could be imposed upon members who crossed the picket line. On February 28, Respondent sent identically worded letters to seven of the 37 employees here involved, charging them with violating article XX, section 2 of Respondent's constitution by crossing the picket line. On March 3, the Company sent its employees identically worded letters reading as follows: We understand that many employees have been threatened with heavy fines by the Union if they cross the picket lines to work or to collect paychecks. The Union takes the position that it can fine its members for crossing the picket line-something it has never done before in its long history. You don't have to submit to this kind of threat-you have the right to join, refrain from joining, or to resign from the union at any time. We don't see how the Union can fine anyone who was not a member of the union for anything he does after he has resigned. As always, employees are free to belong to the union or not to belong-the choice is yours. The plant will remain open for first shift operations and those employees who wish to return to work will be welcome. By letters dated March 5, the above seven employees were notified by Respondent of the date on which they would be tried. By letters dated the same day, the Company informed its employees that some had "been threatened with heavy fines" by Respondent, and that- In the event the Union attempts to collect fines for crossing the picket line, the Company will provide the individuals fined with every assistance possible, includ- ing reasonable legal aid if necessary. On March 12, Respondent sent letters to some of the remaining 30 employees charging them with violating Article XX, Section 2 of the constitution by crossing the picket line, and notifying them of the dates of their respective trials. Although there is testimony that such letters were sent to all of the 30, the record shows that some of them first crossed the picket line after March 12. It is thus likely that such letters were sent to the balance of the 30 at a later date. None of the 37 appeared at their trials. On March 13 or 14, Respondent notified those who had been tried that they had been fined $500. All of the 37 continued to work behind the picket line beyond March 14. The strike ended on April 13. On June 13 or 14, Respondent notified the balance of those tried that they had been fined $500.6 The parties stipulated that on or about September 26, Respon- 5 See Appendix A attached hereto [omitted from publication 1 6 Respondent's recording secretary, Warner, testified that one employee, Standon, was informed that his fine was $30 However, no letter to that effect was produced Moreover, Southern, president of the district which includes Respondent, testified that although she is a member of Respondent, spent 2 hours a day at Respondent's office, was kept informed of Respondent's affairs, and participated in determining the fines imposed on all 37, she was not aware that Standon had been fined only $30 In addition, the parties stipulated that all of the 37 had been fined $500. Finally , Respondent does not claim in its brief that the fine imposed on Standon was lawful because it amounted to only $30 The brief merely recites that the $500 fines of 4 employees were reduced and that the fines of some 33 employees were $500, and that all the fines were lawful 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dent reduced the fines of 4 employees to the following amounts: Behm $300 Gooding 195 D. Riebli 195 Beavor 2507 Miller, a former officer of Respondent and a member of one of the trial committees, testified that the $500 fines were recommended by the trial committees; that although they discussed the matter of earnings of employees after the strike began, there was no method of determining how much they would earn because it was not known how long the strike would last; and that employee earnings accordingly played no part in arriving at the amount of the fines. He further testified that some of the trial committee members wanted to fine the employees more than $500 because they felt that crossing the picket line was a serious offense which took "our bread and butter away from us"; and that they agreed upon a $500 fine as a compromise. Their recommendation was then ratified by Respondent's membership. B. Contentions The General Counsel attacks the fines imposed on all 37 employees upon two principal grounds. First, he contends that under the doctrine of the Allis-Chalmers case,8 a fine which is arbitrary or unreasonably large is unlawful. According to the General Counsel, the fines in this case, including the four which were reduced, were both arbitrary and excessive for several reasons: (1) Respondent failed to warn the fined employees about the possibility of fines for crossing the picket line and thus violated the requirement of fair dealing demanded of unions; (2) the fines were arrived at without regard to how often the employees crossed the picket line, were imposed indiscriminately upon all 37 employees here involved, including 22 who had resigned their membership in Respondent prior to crossing the picket line, without considering their willingness to forego the benefits of membership in return for greater freedom of action (3) the amount of the fines exceeded the individual gross earnings of 36 of the fined employees during the 7 The General Counsel states in his brief that the transcript incorrectly states the amount of Beavor's fine as $250 instead of $260 s N L R B v Allis-Chalmers Manufacturing Co, 388 U.S 175 9 The General Counsel asserts that in the case of employee Beavor, the fine was over 70 percent of his gross strike earnings is In addition to agreeing with the foregoing contentions , the Company argues : ( 1) that the record fails to establish that the fined employees were members of Respondent , and (2) that if its offer of proof at the hearing had not been rejected , it could have established that the fines were unlawful because Respondent failed to accord due process to the fined employees I find no merit to these arguments The record shows that because the General Counsel and Respondent had not reached agreement on exact language, they agreed to defer a stipulation which would have included, inter aha, agreement that the fined employees were members of Respondent at the commencement of the strike . Thereafter, the General Counsel expressly stated that that was his position , and Respondent has period up to the time Respondent received their resignation letters; 9 and (4) there are no circumstances that would justify the uniform imposition of so large a fine. The second basis for attacking the fines is that insofar as imposed against the 22 who resigned from Respondent before crossing the picket line, such fines were not protected by the proviso to Section 8(b)(1)(A), and operate to restrain or coerce employees in their protected right to refrain from engaging in concerted activities.10 Respondent contends that the resignations were not effective, that the fined employees continued to be members of Respondent at the time each crossed the picket line, and hence that they were subject to union discipline. Although arguing that the Allis-Chalmers decision did not state that a fine must be reasonable in order to be lawful, Respondent concedes that a "confiscatory" fine might require adjustment. Respondent then contends that even if Allis-Chalmers were regarded as containing a requirement that a union fine be reasonable, its fines were entirely reasonable. In support of his contention, Respondent asserts the following: 1. The employees were warned at the outset of the strike that they might be fined for crossing the picket line. 2. The reasonableness of a fine should be measured, not by the number of times a member crosses the picket line, but by the quality of his act. Even a single act of crossing a picket line constitutes the "capital crime" of "strike- breaking." 3. Absent a satisfactory explanation from a strike- breaker for his conduct and his assurance that he would sin no more, Respondent had a right to assume that he would continue to cast his lot with the Company. Here, the fined employees rejected the opportunity given them to explain their conduct, and continued to cross the picket line. 4. A valid purpose of a fine is deterrence. To be effective, the fine must be levied promptly after the act of strike-breaking. A fine imposed during the strike cannot be related to strike earnings because there is no way for a union to determine how much such earnings will amount to. Even if the fine were fixed at a percentage of the strike earnings, Respondent would be unable to enforce its collection, since it could not sue to collect a percentage of an unspecified amount. Accordingly, the reasonableness of continued to insist that they remained members Although the stipulation was not later perfected, apparently through oversight, I regard these positions as tantamount to a stipulation between the General Counsel and Respondent that the fined employees were members at the commencement of the strike And since there is nothing to show that they were not members at that time, I find that they were. As for the claim of lack of due process, the General Counsel stated that he was not attacking the legality of fines on that basis . Since the General Counsel is dominus litus by virtue of Section 3(d) of the Act, he "has the power to decide whether to issue a complaint and to determine what its legal theory should be " Local 282, International Brotherhood of Teamsters v N L R B, 339 F 2d 795, 799 (C A 2) Accord: Waitresses & Cafeteria Women's Local No 305 (Haleston Drug Store, Inc), 86 NLRB 1166, 1170, affd 187 F 2d 418, 421 (CA 9), cert denied 342 U S 815, Tulsa General Drivers, Warehousemen & Helpers, Local Union 523 (Rocket Freight Lines Co), 176 NLRB No 94 LOCAL 1012, ELECTRICAL WORKERS a fine should not be governed by the amount of the strike earnings.ii C. Concluding Findings 1. Section 8(b)(1)(A) prohibits a labor organization from restraining or coercing employees in the exercise of rights guaranteed by Section 7. Such rights include not only the right to engage in concerted activity, but also the right to refrain from engaging in such activity. However, a proviso to Section 8(b)(1)(A) provides that that section shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein. In Allis-Chalmers and again in Scofield v. N.L.R.B., 394 U.S. 423, the Supreme Court made it abundantly clear that under these provisions, a union may lawfully enforce a duly adopted rule forbidding the crossing of a picket line by imposing a "reasonable" fine upon transgressing members. The effect of these decisions is to draw a distinction between fines which, because they are reasonable, do not involve unlawful restraint or coercion within the meaning of Section 8(b)(1)(A), and fines which are unlawful because unreasonable. A number of Trial Examiners have issued decisions, presently pending before the Board, which contain varying criteria for resolving the question whether a fine is reasonable. No useful purpose would be served in attempting to summarize their differing views regarding that troublesome question. After reflection, I have reached the following conclusions for purposes of this case. A fine by its very nature exerts pressure and thereby regulates conduct. Speaking broadly, all fines thus restrain or coerce. The effect of a fine will, of course, depend upon circumstances, and the degree of regulation may vary from minimal to total. In view of the above-stated distinction made by the Supreme Court between reasonable and unreasonable fines, _I am of the opinion that a fine involves unlawful restraint or coercion where it tends to act as a complete deterrent to crossing a picket line, and that it is lawful where it merely tends to discourage such conduct. Whatever other tests a fine should satisfy before it may properly be concluded that the fines does not completely deter but merely discourages, I believe that the following criteria should be met: (1) prior to the time the fined employee crossed the picket line, the union had duly adopted and announced a formula which enabled him to predict with reasonable accuracy the amount of the fine 11 Respondent also asserts that the fines of four members were reduced from $500 to an amount equal to 35 percent of the regular straight time earnings during the strike , that such reductions were made at the suggestion of a Board agent who, according to Respondent, could hardly have made the suggestion without authorization , that although Respondent has always believed that the original amount of the fine was reasonable, such reductions were reluctantly made in order to avoid litigation , and that the allegation in the complaint that the reduced fines were unlawful places Respondent in an "anomalous " position Since Respondent does not request any relief based on its assertions described above, I find it unnecessary to express any views regarding them In passing, I note the decision in Crescent Art Linen Co, 158 NLRB 447, wherein it is stated (at p 452, In 19)• "The advice of a Board agent is not tantamount to a commitment and does not operate to estop the Board or the General Counsel " 12 It need not be established that the absence of predictability in fact restrained or coerced all or even any employees Just as discouragement of 379 which would be imposed if he crossed the picket line; and (2) the fine imposed conformed to such formula. I am persuaded that where the amount of a fine imposed upon strikebreakers could not have been predicted with reasona- ble accuracy, other employees who wish to exercise their statutorily protected right to refrain from concerted activity by crossing the picket line may be unwilling to run the risk of a fine which might be intolerable to them, and will accordingly forego the exercise of such statutory right.12 Even though they may ultimately be able to defeat the union's attempt at judicial enforcement if the fine should be excessive in amount , they remain "under a feeling of constraint so long as the fine remains unpaid. The outstanding fine presents a constant threat that the disciplined member will have to pay legal fees to protect himself in court." 13 As Mr. Justice Black pointed out in his dissenting opinion in Allis-Chalmers, "few employees would have the courage or the financial means to be willing to take that risk." 14 A mere warning that a transgressor may be fined is insufficient. Even without a warning, union members are not unaware that crossing a picket line is regarded as a serious offense against their union and that it may result in punishment. A general warning of a fine does not remedy the dilemma of a union member since it does not enable him to predict with reasonable accuracy how much the fine may be. Equally insufficient is a formula which involves such a large gap between the outer limits of the possible fine that its actual amount cannot be predicted with reasonable accuracy.is No extended discussion is necessary respecting the second criterion mentioned above-that the fine imposed should conform to the announced formula. A fine which deviates from the formula is no different from one imposed without a formula, and exercises no less restraint and coercion. Even though a fine is imposed pursuant to an announced formula, it may nevertheless be unlawful because its amount is such as to act as a complete deterrent to crossing a picket line. However, I do not reach that problem in this case. For applying the tests discussed above to the fines here involved, I find that they were unlawful, since the record establishes that they were not arrived at pursuant to a formula duly adopted and announced by Respondent prior to the time the fined employees first crossed the picket line. Although some employees first crossed the picket line after $500 fines were imposed on others on March 13 or 14, some employees from union membership may properly be inferred where an employer discriminates against an employee who joins a union ( Radio Officers' Union v. N LR B, 347 U S. 17), so restraint or coercion of some employees may be inferred where the amount of a possible fine cannot be predicted. 13 International Molders' and Allied Workers ' Union, Local No 125, AFL-CIO (Blackhawk Tanning Co, Inc), 178 NLRB No. 25 14 388 U S. at p. 204 15 In Scofield, the union bylaws provided for a maximum fine of $100. in Allis-Chalmers, the union constitution and bylaws provided for a fine of up to $ 100 for each day that the picket line was crossed . Although such formula does not meet the above test, the fines actually imposed ranged from $20 to $100 Perhaps no formula is necessary where the actual fine does not exceed $ 100, possibly on the theory that such a fine can reasonably be anticipated by a strikebreaker even without the benefit of an announced formula. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those fines cannot be regarded as having satisfied the tests here applied, since the employees were not told and could not know that substantially similar fines would be uniformly imposed upon others who similarly chose to exercise their statutory right to refrain from striking. I accordingly find that by imposing the above-mentioned fines upon the 37 employees involved in this proceeding, Respondent violated Section 8(b)(1)(A) of the Act. 2. As already noted, during February, March and April, the 37 fined employees sent letters to Respondent resigning their union membership. I find that such letters were sent by 22 of the 37 employees before they crossed the picket line. However, based on the parties' stipulations relating to the dates the letters were received, I find that only 14 of the letters were received by Respondent before the senders first crossed the picket line.16 With respect to the other 8 employees,17 the record shows that their letters were received by Respondent on the same day that they first crossed the picket line. I cannot assume that the letters were delivered to Respondent before they reported for work Since a resignation is not complete until it is communicat- ed, I find that no more than 14 of the 37 fined employees can be regarded as having resigned from membership in Respondent at the time they crossed the picket line. In Scofield, the Supreme Court stated: Under this dual approach, Sec. 8(b)(1) 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 members who are free to leave the union and escape the rule. The language implies, Respondent seemed to recognize at the hearing, and I find that Section 8(b)(1)(A) prohibits a union from fining an employee for conduct engaged in when he was not a member of the union. Certainly, the proviso to that section does not sanction such a fine. Moreover, even though a fine may not be collectable from a nonmember, the fact that he may be required to resist possible court action to enforce the fine operates to restrain or coerce him. See notes 13 and 14, supra. The question then is whether or not the 14 employees mentioned above were members or nonmembers of Respondent at the time they crossed the picket line. In support of its contention that their resignations were ineffective and hence that they were members, Respondent argues that although its constitution and bylaws are silent regarding the subject of resignation, its "custom and practice of over a decade have operated to write into [Respondent's ] Constitution and Bylaws a provision which limits resignations to the annual escape period"; and that the resignation letters of the 14 employees were sent and received during the months of February, March, and April, i.e., outside the escape period. The escape period referred to by Respondent is an annual 10-day period from September 21 through 30 during which, under the collective-bargain- ing agreements entered into between Respondent and the Company since 1956, members of Respondent may revoke 16 Banales, Mary Emilio, Furbish, Glenn, Hill, Luke, Neff, Remstadler, Roman Riebli, Shaffer, Stockwell, Tate, Taylor, and Wickline 17 Clay, Floyd Durham, Vivian Durham, Alfred Fattarsi, William Fattarsi, Maxwell, Plott, and Standon 18 The record shows that new letters were sent by all of the 14 in their voluntary checkoff authorizations. Respondent points to the fact that the checkoff authorization card, which includes a reservation of the right to revoke during the escape period, contains an application for membership on the other side of the card; that Respondent has honored resignations from membership only when made during the escape period, and has always continued to accord voting and other membership rights to employees (including the 14 here in question) who attempted to resign outside the escape period; and that because of this long-established practice, "the manner in which the membership obligation can be terminated has merged with the so-called member- ship dues revocation period." Finally, Respondent points out that since a number of the employees who sent resignation letters outside the escape period sent new resignation letters during the escape penod,18 they must have recognized that their earlier resignations were ineffective. I disagree. Since Respondent's constitution and bylaws contained no procedure by which employees could voluntarily resign their membership, the employees were free to resign at will.19 I find no merit to Respondent's contention that custom and practice have served to amend the constitution and bylaws so as to limit resignations from membership to the escape period provided for in the collective-bargaining agreements relating to revocation of checkoff authoriza- tion. Article XXIV of Respondent's constitution, which sets forth the procedure for amending it, provides as follows: Section 1. Any member in good standing of the Local may, with the written endorsement of ten (10) members in good standing of the Local, submit proposed amendments to this Constitution. All amendments shall be submitted in writing to the Local Executive Board. Section 2. The Local Executive Board shall present the proposed amendment to the regular membership meeting within forty (40) days after the proposed amendment has been received. The Executive Board shall make its recommendations on the proposal to the membership. The proposed amendment shall become part of this Constitution if approved by a two-thirds (2/3) vote, of the members present at this meeting, provided such amendment does not conflict with the Constitution of the International Union. This procedure was not followed in adopting the "amendment" to the constitution claimed by Respondent. It is doubtful that Respondent can avoid a statutory prohibition by relying upon a constitutional amendment adopted under a procedure which failed to conform to that required by the express terms of the constitution. Certainly the claimed amendment cannot be relied on unless it was communicated to and acquiesced in by Respondent's membership prior to such reliance. The record does not establish such communication and acquiescence. They are not established by the use of Respondent's combined membership and checkoff authorization card. The mem- bership portion of the card is silent concerning termination of membership, and an employee could not be expected to question except Banales, Glenn, and Luke The latter did, however, revoke his checkoff authorization dunng the escape period 19 Aeronautical Industrial District, Lodge 751 (Boeing Co.), 173 NLRB No 71, Local Union No 621, United Rubber, Cork, Linoleum and Plastic Workers (Atlantic Research Corp), 167 NLRB No 83 ST. LOUIS TYPOGRAPHICAL UNION NO. 8 same functions as the earlier mechanical typesetting machines and hence are merely a more efficient substitute for the earlier mechanical devices. 6. Efficiency of operations The Company, despite its prior written assignment, at the hearing indicated that it desires assignment of all of the disputed maintenance work to the ITU machine tenders, asserting that such assignment would promote efficiency in its operations. The record discloses that in the newspaper printing business, time is a prime factor, as there are constant deadlines to be met. It is apparent that at least one advantage in the use of the fototronic 1200 machine is its probable contribution to speed in production. The record shows that the fototronic 1200 because of its speed will be replacing older machines, thus doing a greater volume of the work. This indicates that "downtime" will become a more critical factor when maintenance tasks are required . The ITU machine tenders working in the composing room are available to give immediate attention to maintenance tasks. We find that the factor of efficiency favors the ITU. Conclusions as to the Merits of the Dispute Upon consideration of all pertinent factors appear- ing in the record, we shall assign the disputed work to the ITU machine tenders, who possess sufficient skill, are more effective in the performance of such work because of their broader knowledge of the machines and of the typesetting process, and have performed the work in the past to the satisfaction of the 281 Company, which desires to assign them the work. The assignment of the work in dispute to the machine tenders is consistent with that of other employers in the industry. Moreover, the assignment of the disputed work to the electricians would not promote the efficiency of the Company's typesetting opera- tions, and might result in delay and unnecessary cost. We, accordingly, determine the instant jurisdictional dispute by deciding that the ITU machine tenders, rather than the IBEW electricians, are entitled to perform the electronic maintenance work on the Company's fototronic 1200 typesetting machine, including the replacement of the electronic Compo- nents previously assigned to the IBEW electricians. In making this determination, we are assigning the work to the machine tenders who are represented by the ITU but not to that Union or its members. DETERMINATION OF DISPUTE Pursuant to Section 10(k) of the National Labor Relations Act, as amended, and upon the basis of the foregoing findings and the entire record in this proceeding, the National Labor Relations Board makes the following determination of dispute: The Machine tenders employed by the Pulitzer Publishing Company, who are represented by the St. Louis Typographical Union No. 8, affiliated with International Typographical Union, AFL-CIO, are entitled to perform the disputed work of maintaining and testing the fototronic 1200 typesetting machine located in the composing room of the Pulitzer Publishing Company, St. Louis, Missouri.