CWA Local 1101

CWA LOCAL 1101 267 Local 1101 Communication Workers of America, AFL-CIO and New York Telephone Company Local 1101 Communication Workers of America, AFL-CIO (New York Telephone Company) and William Galik, Salvadore Del Pino, Maximo Paolelli, Martin Shulsinger, Therese E. Izzard, Catherine Bullock, Kamal S. Attia, Joseph Pagliar- ulo, Kathleen E. Gorman, Lillian Gallen, Florencia C. Cuilao, Donald P. Sullivan, Charles Kirk, Felix Penton, and Harry LaFontant Local 1104 Communication Workers of America, AFL-CIO (New York Telephone Company) and Amelia C. Doane, Karen L. Doane, Gioia Valen- tine, Margaret M. Fee, Claire R. Freeman, Ralph Sacrestano, Therese Noto, Frank J. Behan, James A. O'Dell, Bruno Wittrien, Michael T. Bonanza, and Harold J. Humphreys Local 1106 Communication Workers of America, AFL-CIO (New York Telephone Company) and Elbert Dawkins Local 1108 Communication Workers of America, AFL-CIO (New York Telephone Company) and Miriam Truhan, Dennis Chacona, and Maureen M. DiPaola. Cases 2-CB-5172, 2-CB-5141, 2-CB-5152, 2-CB-5162, 2-CB-5163, 2-CB-5172-2, -3, -4, -5, 2-CB-5178-1, -2, -3, 2-CB-5183, 2 -CB-5212, 2-CB-5214, 2-CB-5226, 2-CB-5262 (formerly 29-CB-1223-1), 2-CB-5262-1 (formerly 29-CB-1223-2), 2-CB-5262-2 (formerly 29-CB-1223-3), 2-CB-5262-3 (formerly 29-CB-1255), 2-CB-5262-4 (formerly 29-CB-1255-2), 2-CB-5262-5 (formerly 29-CB- 1273), 2-CB-5262-6 (formerly 29-CB-1274), 2-CB-5262-7 (formerly 29-CB-1275), 2-CB-5262-8 (formerly 29-CB-1280), 2-CB-5262-9 (formerly 29-CB-1280-2), 2-CB-5264 (formerly 29-CB-1303), 2-CB-5265 (formerly 29-CB-1304), 2-CB-5266-1 (formerly 29-CB-1315), 2-CB-5263 (formerly 29-CB-1284), 2-CB-5263-I (formerly 29-CB-1290-1), and 2-CB-5263-2 (formerly 29-CB- 1290-2) January 9, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY AND PENELLO On September 4, 1973 , Administrative Law Judge Benjamin K. Blackburn issued the attached Decision in this proceeding. Thereafter, both the General Counsel and the Charging Party filed exceptions and supporting briefs, and Respondents have filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached 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, and we agree, that Respondents, as real parties in interest to the contract between the Communication Workers of America and the New York Telephone Company, engaged in a strike from July 14, 1971, to February 18, 1972, to force the Company to modify the contract then in existence, and that the strike was illegal because of Respondents' failure to comply with Section 8(d) of the Act. He further found that Respondent Local 1104 violated Section 8(b)(1)(A) by fining those employees who had resigned their membership in the Union before returning to work during the strike. However, he concluded that the issue of whether Respondents violated Section 8(b)(1)(A) by fining other employees for abandoning the strike and crossing picket lines either before or without any resignations turned on the question of whether the strike violated the Act. In the Adminis- trative Law Judge's opinion, since the strike com- menced more than 6 months before the filing of the charges in this case, the 6-month statute of limitation provision in Section 10(b) of the Act precludes any finding that these fines were unlawful by reason of the strike, and he recommended that the allegation be dismissed. We disagree. In our view, Section 10(b) does not bar a utilization of pre-10(b) evidence (here the nature of the strike) in order to demonstrate the true character of the fines imposed by Respondents. It is our judgment that by imposing such fines against members who crossed a picket line, which was set up in support of an unprotected strike, Respondents violated Section 8(b)(1)(A) of the Act. Inasmuch as we agree with the factual findings made by the Administrative Law Judge,' the main issue before us is the 10(b) question; thus, a complete recitation of the facts, all set forth in the attached Decision, is unnecessary. Briefly, the record shows that CWA's contract with the Company was sched- uled to expire on July 28, 1971.On May 24, and June 21, 1971, CWA sent the 60-day and 30-day notices, respectively, as required by Section 8(d) of the Act. ' See the companion case issued today, New York Telephone Co, 208 NLRB No 31 208 NLRB No. 32 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to its past practice, CWA selected two units to serve as pattern setters for other contract negotiations, and this time focused on Western Electric and Chesapeake & Potomac Telephone Co. After the executive board of CWA voted to reject management's proposals, it ordered a strike vote, the results of which, announced at CWA's convention, were that the membership had authorized a strike to begin July 14, 1971. On that date, the strike began and, although other umons returned to work between July 21 and August 26, 1971, when the strike was officially authorized, Respondents remained on strike until February 18, 1972. While the strike was in progress, some employees abandoned the strike and returned to work; a few resigned their memberships in Respondents before they did so, although most did not. However, after the strike ended, Respondents imposed fines on those who crossed the picket line, and it is these fines which the complaint alleges to violate Section 8(b)(1)(A). As noted, the Administrative Law Judge found that the postresignation fines violated Section 8(b)(1)(A) of the Act. Quoting at length from the Supreme Court's opinion in Bryan Manufacturing Co.,2 he rationalized that the other fines are illegal only if the strike is illegal . He found that the question of the illegality of the strike was predicated on the events which occurred in July 1971; that Section 10(b) precludes a determination as to whether Respon- dents' strike violated Section 8(b)(3); and, therefore, that the Board is precluded from finding that the fines violated Section 8(b)(1)(A). He distinguished the postresignation fines because, in his view, the illegality of those fines does not depend upon the illegality of the strike but upon the restraint and coercion Respondent Local 1104 imposed on persons who were not subject to its internal discipline. While we agree that Respondents' postresignation fines are unlawful, we believe that the Administrative Law Judge's analysis of Section 10(b) in this context is erroneous. In effect, his holding may be summa- rized as follows: the fines are not unlawful unless the strike is; the strike cannot be found to be unlawful because of Section 10(b); thus, the fines are lawful. The weakness in this syllogistical argument is the middle premise. In our view, it is unnecessary to find an unfair labor practice based on the strike in order to resolve the fine issue, and it is clear that no relief is being sought vis-a-vis the strike. The gravamen of the complaint is that the fines restrained and coerced 2 362 U S 411(1960) 3 See, for example , United Steelworkers of America, Local 1114, 187 NLRB 22 4 N L R B v Aero Corporation, 363 F 2d 702 (C.A D C, 1966), enfg. 149 NLRB 1283, cert denied 385 U S 973 (1966) a See Production, Electronic & Aero-Dynamic Lodge No 1327, 1AM Dalmo Victor Company, a Division of Textron Corporation), 192 NLRB 1015, employees in violation of the Act, and all that must be established is that the fines contravened the employees' Section 7 rights. In order to prove that allegation, pre-$ection 10(b) evidence may be intro- duced to explain the true nature of the fines. Unlike the situation in Bryan or other cases where all the operative facts needed to establish a violation occurred outside the 10(b) period,3 where "there has been active conduct, as contrasted with mere passive inaction following an old offense, it is open to the Board to refer to previous acts . . . ."4 Applying this principle to the present case, it becomes clear that we are not confronted with a situation where the only conduct complained of is the "unlawful" strike, but where "active conduct" in the nature of fines has also occurred, and Section 10(b) does not preclude an examination of previous acts in order to resolve the legality of the fines. Similarly, we do not construe Section 10(b) to preclude the Board from examining the circumstances surrounding the commencement of the strike in order to assess whether the fines, imposed for abandoning the strike, violate the Act.5 Therefore, since the work stoppage, which had as its ultimate goal the modification of the existing contract, commenced less than 60 days after the notice of termination and before the expiration of the contract, the strike was an unprotected strike. Accordingly, Respondents violated Section 8(b)(1)(A) by fining members for abandoning the strike and returning to work. We shall order that all the fines be canceled, that any fines which have been paid be returned with interest at the rate of 6 percent annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716, and that any suspensions imposed for failure to pay the fines be lifted. In addition, we shall order that Respondents notify the persons who have been fined, in writing, that such action has been taken.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents, Communication Workers of America, AFL-CIO, Locals 1101, 1104, 1106, and 1108, New York, New York, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees in the where the Board held that the union violated Sec 8(b)(1)(A) where the fine itself was imposed within the 10(b) period, but the resignation from the union, which made the fine illegal, occurred outside the 10(b) period. 6 This remedy shall apply to, but is not limited to, the persons named in the Order inasmuch as the list, compiled from the record, may not be complete CWA LOCAL 1101 exercise of their rights guaranteed in Section 7 of the Act by imposing fines upon employees and suspend- ing them for nonpayment thereof, because said employees abandoned the strike and returned to work, either where the strike had commenced without compliance with the provisions of Section 8(d)(4) of the Act, or where the employees had resigned from membership and the fines related to their postresignation conduct. (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 to effec- tuate the policies of the Act: (a) Cancel the fines imposed upon any of the employees who abandoned the strike of July 14, 1971, to return to work, including those listed below, withdraw any charges filed against such employees, lift any suspensions from membership for nonpay- ment of such fines, and notify the affected employ- ees, in writing, of the action taken: Michael Abramson Kathy Addison Frank Alexander Kamel Attia Lonnie Bass Katherine Bullock Anthony Ciarcia F. Cuilao Conelius A. Davis Salvatore Del Pino Michael DiRoma Dennis Eswick L. G..llen William Galik Victoria Garces Yo Go Pat Goddard D. Giocochea K. Gorman Buckley Pradyut Guha Margaret M. Fee Giola Valente Anna Gumbs James V. Hammond Alvin B. Jenkins Timothy Johnson William Juhans Roosevelt Kerr B. Khangar Charles Kirk Harry J. LaFontant G. I. Lieberman Richard Lope P. Mahin Claudette Manigault Kenneth Marshall K. McHugh A. E. Munro Liong (Frank) S. Ong Joseph Pagliarullo Maximo Paolkili Felix Penton Karen L. Doane Amelia C. Doane Claire Freeman Dexter C. Patterson Leon R. Reese Eleanor J. Rusielewicz Elvire Servhen John Shaw John E. Silvers R. B. Smith Neville N. Soloman Joseph R. Torres Henry F. Williams Peter Zurheide Therese Noto Maureen Di Paola Dennis Chacoma Mirian Truhan Elbert Dawkins Bruno Wittrien James O'Dell Frank Behan Ralph Sacrestano Harold J. Humphrey Michael T. Bonanza 269 (b) Post at their offices and meeting rooms and at the affected locations of the New York Telephone Company, if the Company is willing, copies of the attached notice marked "Appendix A, B, C, or D." 7 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by an authorized representative, shall be posted at the aforementioned locations immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps each has taken to comply herewith. T In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court or Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law by fining members and former members for abandoning the strike against the New York Tele- phone Company which began on July 14, 1971, and has ordered us to post this notice. WE WILL NOT impose fines upon members or tormer members, nor suspend them for nonpay- ment of fines which have been imposed because employees abandoned the strike against the New York Telephone Company which commenced on July 14, 1971, and returned to work. WE WILL NOT in any like or related manner restrain or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL notify the following members and former members that we have canceled the fines imposed upon them and lifted their suspension from membership. Michael Abramson Neville N. Soloman Kathy Addison Alvin B. Jenkins Frank Alexander Timothy Johnson Kamel Attia William Juhans Lonnie Bass Roosevelt Kerr 270 Katherine Bullock Anthony Ciarcir F. Cuilao Cornelius A. Davis Salvatore Del Pino Michael DiRoma Dennis Eswick L. Gallen William Galik Victoria Garces Yo Go Pat Goddard D. Giocochea K. Gorman Buckley Pradyut Guha Anna Gumbs James V. Hammond John Shaw John E. Silvers R. B. Smith Eleanor J . Rusielewicz DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Khangar Charles Kirk Harry J . LaFontant G. I. Lieberman Richard Lopez P. Mahin Claudette Manigault Kenneth Marshall K. McHugh A. E. Munro Loing (Frank) S. Ong Joseph Pagliarullo Maximo Paokili Felix Penton Dexter C . Patterson Leon R. Reese Elvire Servlien Joseph R. Torres Henry F. Williams Peter Zurheide Elbert Dawkins LOCAL 1101 COMMUNICATION WORKERS OF AMERICA, AFL-CIO (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 compli- ance with its provisions may he directed to the Board's Office , 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Tele- phone 212-264-0300. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law by fining members and former members for abandoning the strike against the New York Tele- phone Company which began on July 14, 1971, and has ordered us to post this notice. WE WILL NOT impose fines upon members or former members, nor suspend them for nonpay- ment of fines which have been imposed because employees abandoned the strike against the New York Telephone Company which commenced on July 14, 1971, and returned to work. WE WILL NO1 in any like or related manner restrain or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL notify the following members and former members that we have canceled the fines imposed upon them and lifted their suspension from membership: Therese Noto Giola Valente Bruno Wittrien Karen L. Doane James O'Dell Amelia C. Doane Frank J. Behan Harold J. Humphrey Ralph Sacrestano Michael T.- Bonanza Margaret M. Fee Claire Freeman LOCAL 1104 COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO (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 compli- ance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York , New York 10007, Tele- phone 212-264-0300. APPENDIX C NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence , the National Labor Relations Board has found that we have violated the law by fining members and former members for abandoning the strike against the New York Tele- phone Company which began on July 14, 1971, and has ordered us to post this notice. WE WILL NOr impose fines upon members, nor suspend them for nonpayment of fines which have been imposed because employees aban- doned the strike against the New York Telephone CWA LOCAL 1101 Company which commenced on July 14, 1971, and returned '.o work. WE WILL NOT in any like or related manner restrain or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL rotify Elbert Dawkins that we have canceled the fine imposed upon him. LOCAL 1106 COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO (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 compli- ance with its Frovisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Tele- phone 212-264-0300. APPENDIX D NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law by fining members and former members for abandoning the strike against the New York Tele- phone Company which began on July 14, 1971, and has ordered us to post this notice. WE WILL NOT impose fines upon members or former members, nor suspend them for nonpay- ment of fines which have been imposed because employees abandoned the strike against the New York Telephone Company which commenced on July 14, 1971. and returned to work. WE WILL NOT in any like or related manner restrain or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL notify the following members and former members that we have canceled the fines imposed upon them and lifted their suspension front membership: Mauree -i Di Paola Dennis Chacoma Mirian Truhan LOCAL 1108 COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO (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 compli- ance with its provisions may be directed to the Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Tele- phone 212-264-0300. DECISION 271 STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The first of the numerous charges which gave rise to this proceeding was filed on April 17, 1972. The consolidated complaint on which hearing was ultimately held was issued on February 14, 1973, and amended at the hearing. The hearing was held on May 29 and 30, 1973, in New York City. The issue presented is whether fines imposed by Respondents on members for abandoning a strike and crossing picket lines to return to work violate Section 8(b)(1)(A) of the National Labor Relations Act, as amended. For the reasons set forth below, I find that, notwithstanding the fact that the New York phase of the 1971 nationwide telephone strike was illegal for failure of Respondents to comply with Section 8(d) of the Act, findings that Respondents violated the Act must be limited to those employees who resigned their union memberships before they returned to work because findings based on fines levied on employees who did not resign or resigned only after they had crossed picket lines are barred by Section 10(b) of the Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consideration of briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION New York Telephone Company, a New York corpora- tion, is engaged in the State of New York in the business of providing telecommunications and related services . During the year just prior to issuance of the consolidated complaint herein, it grossed more than $50 million and purchased goods and materials valued at more than 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD $50,000 which were shipped directly to it by suppliers located outside the State of New York. U. THE UNFAIR LABOR PRACTICES A. Facts The facts in this case are essentially undisputed. New York Telephone Company and Communication Workers of America, AFL-CIO, Respondents' parent labor organi- zation, are parties to a collective-bargaining agreement covering a statewide unit of plant employees. While Respondents and other CWA locals in New York State are not signatories to the contract, there are various references in it to locals, including a provision that locals shall process grievances through the first two steps of a three-step grievance procedure. The locals are organized on a geographic basis. As to the four locals named as Respon- dents in this proceeding, Local 1101 has jurisdiction over Manhattan and the Bronx; Local 1104, Nassau County; Local 1106, Queens County; and Local 1108, Suffolk County; i.e., all are located in the New York City metropolitan area and are thus "downstate ," as distin- guished from "upstate," locals. CWA has contracts with various companies in the Bell System in addition to New York Telephone Company. These contracts have various expiration dates. In 1971, as in previous negotiations, CWA and the Bell System bargained nationally on a pattern basis. Western Electric Company and Chesapeake and Potomac Telephone Company were selected as the patternmakers, and negotia- tions began in the spring of 1971 which were expected to set the pattern for settlements with other Bell System companies such as New York Telephone Company. These negotiations resulted in a nationwide telephone strike which began on July 14, 1971, and ended on July 21, 1971. CWA's contract with New York Telephone Company was scheduled to expire on July 28, 1971. CWA sent the 60-day notice to New York Telephone Company required under Section 8(d)(1) of the Act on May 24, 1971. It sent the 30-day notice to the Federal Mediation and Concilia- tion Service and to the New York State Board of Mediation required under Section 8(d)(3) of the Act on June 21, 1971. It began bargaining with New York Telephone Company on July 6, 1971. The negotiators met on July 7 and 9. On July 13 Don Sanchez, CWA's area director and chairman of its bargaining committee, called off a session scheduled for that day. He told Raymond Williams, New York Telephone Company's assistant vice president of labor relations and chief negotiator, that he was doing so because members of his committee had to return to their home locals in various parts of New York State to carry out their responsibilities in connection with the nationwide strike scheduled to begin the next day. (This record contains the same minor conflict between the testimony of Sanchez and Williams that Administrative Law Judge Henry L. Jalette faced in Communication Workers of America, AFL-CIO, Locals 1127 and 1125 (New York Telephone Company), Cases 3-CB-1851-11, 1875-7, et al. Like Judge Jalette, I credit Williams over Sanchez for the reasons set forth in Jalette's decision (JD-441-73, Jtne 29, 1973). Negotiations resumed on July 14 and continued through July 18. On July 14 only 2,000 of the approximately 39,000 employees in the New York Telephone Company's bargaining unit reported for work. The national negotiations resulted in an agreement on July 18, 1971, subject to ratification by employees on a unit basis. A mail ballot was scheduled, with the results to be announced on August 14. In the interim, CWA ordered all employees to return to work on July 21. In New York State, only three upstate locals obeyed the order to return to work. Others, including the four Respondents in this proceeding, remained on strike . While the national agreement was generally ratified in other parts of the country, it was rejected in New York State . Negotiations continued between CWA and New York Telephone Company after August 14. On August 26 CWA formally authorized the New York strike for the first time. Agreement was finally reached in February 1972. The new contract between CWA and New York Telephone Compa- ny was ratified on February 16, 1972, and the strike ended on February 18. Between July 14, 1971, and February 18, 1972, some employees of New York Telephone Company abandoned the strike and returned to work. A few resigned their memberships in CWA before they did so. Most did not. Subsequent to February 18, 1972, Respondents began fining persons for crossing picket lines to return to work. (The earliest date specified , in the record is March 28, 1972.) Among those fined were members who have never resigned as well as those who have . In the latter group, most returned to work before they tendered their resigna- tions. Any fines collected up to the time of the hearing were paid voluntarily. None of the Respondents has yet taken any steps to collect fines from those who have not paid. B. Analysis and Conclusions Insofar as the fines are concerned, this proceeding and CWA Locals 1127 and 1125, supra, are identical. The latter involves fines imposed by upstate locals, the former, downstate. All the issues raised by Locals 1125 and 1127 in the latter were raised by Locals 1101, 1104, 1106 , and 1108 here. The relevant evidence is the same . It would serve no useful purpose to repeat or rephrase Judge Jalette's cogent analysis of those issues . Suffice it to say that I agree with Judge Jalette, for the reasons he stated and on the basis of the precedent he cited, in making the following findings: 1. Respondents are the real parties in interest to the contract between CWA and New York Telephone Compa- ny. Therefore, even though they are not signatories, they are parties to that contract within the meaning of Section 8(d) of the Act. 2. Respondents' purpose in striking on July 14, 1971, and thereafter was not to observe the picket lines thrown up by Western Electric Company strikers but to force New York Telephone Company to modify the contract then in existence. Therefore, they violated the Act by striking prior to the expiration of the 60- and 30-day notices required under Section 8(d) and prior to the termination of the contract they sought to modify, as proscribed by Section 8(d). 3. Respondents did nothing to comply with the CWA LOCAL 1101 provisions of Section 8(d) during the strike. Therefore, the strike remained illegal at all times even though the 60- and 30-day notices given by CWA eventually expired and the termination date of the contract came and went during the stake. Similarly, the action of CWA in finally ratifying their continuing strike on August 26, 1971, had no legal significance. Respondents here, however, have raised one defense which, apparently, was not raised in the upstate proceed- ing-Section 10(b). (Judge Jalette rejected a 10(b) defense as to one of the cases consolidated for hearing before him. However, the issue grew out of the fact that the charging party had withdrawn his charge at the Regional Director's request. The Regional Director subsequently changed his mind and reinstated the charge. The reinstatement date was more than 6 months after the day on which that particular charging party had been fined by the local to which he belonged.) Respondents contend that, no charge having been filed within 6 months of the beginning of the stake, Section 10(b) precludes a finding that they have committed unfair labor practices. I find merit in their argument. The literal language of Section 10(b}-"no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board"-would seem to require an opposite conclu- sion, for the unfair labor practice complained of is not Respondents' failure to bargain in good faith with New York Telephone Company by flouting the requirements of Section 8(d) but their restraining and coercing employees by imposing fines on them. But the Supreme Court's definitive interpretation of Section 10(b)'s statute of limitations in the Bryan Manufacturing Co. case (Local Lodge No. 1424, International Association of Machinists, AFL-CIO v. N.L.R.B., 362 U.S. 411 (1960) supports Respondents' position. In Bryan the contract at issue was executed at a time when the respondent union did not represent a majority of unit employees. However, it had been in effect for more than 6 months before charges were filed alleging violation of Section 8(a)(1) and (3) by the company and Section 8(b)(1)(A) and (2) by the union. In finding that the complaint was barred by Section 10(b), despite the fact that the contract had been enforced within the 6 months prior to filing of the charges, the Supreme Court said: It is doubtless true that Sec. 10(b) does not prevent all use of evidence relating to events transpiring more han six months before the filing and service of an unfair labor practice charge. However, in applying rules of evidence as to the admissibility of past events, due regard for the purposes of Sec. 10(b) requires that two different kinds of situations he distinguished. The first is one where occurrences within the six-month limitations period in and of themselves may constitute, as a substantive matter, unfair labor practices. There, earlier events may he utilized to shed light on the true character of matters occurring within the limitations period; and for that purpose Sec. 10(b) ordinarily does not bar such evidentiary use of anterior events. The second situation is that where conduct occurring within the limitations period can be charged to be an unfair 273 labor practice only through reliance on an earlier unfair labor practice. There the use of the earlier unfair labor practice is not merely "evidentiary," since it does not simply lay bare a putative current unfair labor practice. Rather, it serves to cloak with illegality that which was otherwise lawful. And where a complaint based upon that earlier event is time-barred, to permit the event itself to be so used in effect results in reviving a legally defunct unfair labor practice. The situation before us is of this latter variety, for the entire foundation of the unfair labor practice charged was the Union's time-barred lack of majority status when the original collective bargaining agree- ment was signed. In the absence of that fact enforce- ment of this otherwise valid union security clause was wholly benign. * s : s s Where, as here, a collective bargaining agreement and its enforcement are both perfectly lawful on the face of things, and an unfair labor practice cannot be made out except by reliance on the fact of the agreement's original unlawful execution, an event which, because of limitations, cannot itself be made the subject of an unfair labor practice complaint, we think that permit- ting resort to the principle that Sec. 10(b) is not a rule of evidence, in order to convert what is otherwise legal into something illegal, would vitiate the policies underlying that section. s * s r The applicability of these principles cannot be avoided here by invoking the doctrine of continuing violation. It may be conceded that the continued enforcement, as well as the execution, of this collective bargaining agreement constitutes an unfair labor practice, and that these are two logically separate violations, independent in the sense that they can be described in discrete terms. Nevertheless, the vice in the enforcement of this agreement is manifestly not independent of the legality of its execution, as would be the case, for example, with an agreement invalid on its face or with one validly executed, but unlawfully administered. As the dissent- ing Board members in this case recognized, in dealing with an agreement claimed to be void by reason of the union's lack of majority status at the time of its execution, "... the circumstances which cause the agreement to be invalid existed only at the point in time in the past when the agreement was executed and are not thereafter repeated. For this reason, therefore, the continuing validity of the agreement is directly related to and is based solely on its initial invalidity, and has no continuing independent basis." 199 NLRB at 516. In any real sense, then, the complaints in this case are "based upon" the unlawful execution of the agreement, for its enforcement, though continuing, is a continuing violation solely by reason of circumstances existing only at the date of execution. To justify reliance on those circumstances on the ground that the maintenance in 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect of the agreement is a continuing violation is to support a liftirg of the limitations bar by a characteri- zation which becomes apt only when that bar has already been lifted. Put another way, if the Sec. 10(b) proviso is to be given effect, the enforcement, as distinguished from the execution, of such an agreement as this constitutes a suable unfair labor practice only for six months following the making of the agreement. The Board's ruling is further sought to be supported on the ground that it did not rest on a formal finding that the execution of the 1954 agreement constituted an unfair labor practice. The Court of Appeals, while stating that the Board could not draw "any legal conclusion with regard to events outside the statutory period," distinguished the decision here as resting on the "mere existence [of the facts surrounding the making of the 1954 contract] rather than on ascribing legal significance to those facts standing alone." 105 U.S. App. D.C. at 108, 264 F.2d at 581 (emphasis by the court). This distinction sacrifices the policy of the Act to procedural formalities. If, as is not disputable, the Sec. 10(b) limitation was prompted by "complaint that people were being brought to book upon stale charges," N.LR.B. v. Pennwoven, Inc., 194 F.2d 521, 524, it is a particular use of the prelimitations facts or conduct at which the section is aimed, and it can hardly be thought relevant that the proscribed use has not been labeled as such. [Footnotes omitted.] The parallel with this proceeding is, I think, obvious. It is not an unfair labor practice for a union to impose fines on its members for crossing a picket line during a legal strike. N.L.R:B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967); N.L.R.B. v Boeing Co., 412 U.S. 84, decided May 21, 1973. Therefore, laying aside for the moment any distinction to be drawn between persons who resigned from Respondents before they returned to work and those who did not, the fines involved in this proceeding are only illegal because the strike was illegal. If Respondents had not violated Section 8(b)(3) of the Act by striking prior to the July 28, 1971, expiration date of the old contract, fines imposed beginning in March 1972 would not violate Section 8(b)(1)(A). Or, in the Supreme Court's words, Respon- dents' transgressions of July 1971 serve "to cloak with illegality that which was otherwise lawful." The fact that the strike was illegal throughout its course, a course which ran well into the 10(b) period in this proceeding, does not alter the result, for the continuing illegality of the strike is only predicated on the events which took place in July 1971. Or, again in the words of the Supreme Court, "In any real sense, then, the complaints in this [proceeding] are `based upon' [the illegality of the strike as of July 19711, for [the strike's existence], though continuing, is a continuing violation solely by reason of circumstances existing only [in July 1971]." Finally, the fact that no charge has been levied, complaint issued, or formal finding made that Respondents violated Section 8(b)(3) by striking in disregard of the requirements of Section 8(d) does not alter the result. Atteirpting to distinguish the facts of July 1971 from their legal significance "sacrifices the policy of the Act to procedural formalities." I am aware the. practical result of this holding is that the Charging Parties in this proceeding were time barred from obtaining relief through the unfair labor practice route at the very moment illegal fines were levied on them. To expect them to anticipate during the 6-month period, which began in July 1971, that they would be fined sometime after it ended so that they would have filed 8(b)(1)(A) charges during the 10(b) period is to impose on them a duty beyond human capacities. At first blush, this would s'.em to be a situation of a wrong without a remedy, an anomaly the law is said to reject. However, the facts on which Respondents' violation of Section 8(b)(3) were based were obvious the moment they struck on July 14, 1971. It was no secret that their contract with New York Telephone Company still had 2 weeks to run. Therefore, any of these Charging Parties could have filed a timely 8(b)(3) charge. None did so. Therefore, the statutory policy of protecting respondents from stale charges relied on by the Supreme Court in Bryan must prevail. Since, in this sense, the Charging Parties are the authors of their own misfortune, no legal wrong has been done them. The same considerations do not apply in the case of those persons who resigned from Respondents before returning to work, for the gravamen with respect to the fines imposed on them is not Respondents' refusal to bargain with New York Telephone Company but the restraint and coercion Respondents imposed on employees who were not subject to their internal discipline. Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO v. N.LR.B., 412 U.S. 84, decided May 21, 1973. Only 3 of the more than 60 employees as to whom the record contains relevant evidence resigned their union memberships before they crossed picket lines. Therese Noto resigned on August 25, 1971, and returned to work on November 15, 1971.On July 7, 1972, Local 1104 fined her $440. Margaret M. Fee resigned on August 23, 1971, and returned to work on August 29, 1971. On July 13, 1972, Local 1104 fined her $646.80. Claire Freeman resigned on August 30, 1971, and returned to work on August 31, 1971. On July 13, 1972, Local 1104 fined her $558.60. Evidence as to individuals which is in the record was largely introduced by agreement of the parties. It was not intended to be exhaustive. However, since all the evidence relating to fines imposed for postresignation returns to work implicates only Local 1104, I find that the General Counsel has failed to prove any violations of the Act by Locals 1101, 1106, and 1108. As to Local 1104, I find that it violated Section 8(b)(1)(A) of the Act by fining former members, including but not limited to Therese Noto, Margaret M. Fee, and Claire Freeman, for abandoning a strike and crossing picket lines to return to work after they had resigned their member- ships. Upon the foregoing findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. New York Telephone Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Communication Workers of America, AFL-CIO, and its Locals 1101, 1104, 1106, and 1108 are labor CWA LOCAL 1.101 organizations within the meaning of Section 2(5) of the Act. 3. By fining former members for abandoning a strike and crossing picket lines to return to work after they had resigned their memberships, Local 1104 has violated Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 5. The allegations of the complaint that Local 1104 violated Section 8(b)(1)(A) of the Act by fining members and former members for abandoning a strike and crossing picket lines to return to work without or, as the case may be, before resigning their memberships have not been sustained. 6. The allegations of the complaint that Locals 1101, 1106, and 1108 have violated Section 8(b)(1)(A) of the Act by fining members and/or former members under any circumstances have not been sustained. THE REMEDY 275 In order to effectuate the policies of the Act, it is necessary that Local 1104 be ordered to cease and desist from the unfair labor practices found, remedy them, and post the usual notice. I will, therefore, recommend that Local 1104 rescind all fines it has levied against former members who submitted their resignations before aban- doning the strike conducted by Communication Workers of America, AFL-CIO, from July 14, 1971, to February 18, 1972, and crossing picket lines to return to work for New York Telephone Company. Since the record is not clear as to whether any fines levied against persons in this category have, in fact, been collected, I will also recommend that Local 1104 refund any fines which have been paid, whether voluntarily or involuntarily, plus interest at 6 percent per annum. These provisions will apply specifically, but not be limited, to Therese Noto, Margaret M. Fee, and Claire Freeman. [Recommended Order omitted from publication.]