Service Employees Local 680 (Leland Stanford Junior University)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Stanford Employees, Local 680, Service Employees International Union, AFL-CIO and The Leland Stanford Junior University. Case 20- CB-3885 September 23, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On June 1, 1977, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel filed cross-exceptions and a supporting 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 and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge's findings, for the reasons stated by him, that Respon- dent's notification to new employees that they were required to become full members of Respondent as a condition of their employment constitutes a violation of Section 8(b)(1)(A). We further agree with the Administrative Law Judge's finding that employees Cabading and Haff effectively resigned from mem- bership in Respondent, despite Respondent's refusal to accept their resignations. We disagree, however, with the Administrative Law Judge's finding that Respondent's refusal to accept the resignations of these employees on the ground that full membership was a condition of employment was lawful under the Act. To the contrary, we find that Respondent's refusal to allow resignations is analogous to its insistence on full membership because it is premised on the same ground and constitutes a violation of Section 8(b)(1)(A). Employees Cabading and Haff wrote letters to Respondent stating that they wished to resign from membership in Respondent. A rule in Respondent's bylaws allowed resignation from membership within at least 90 days from the submission of a resignation request. Respondent, however, disregarded its bylaws At all times material, Respondent made known to employees its position that "membership" included the signing of a membership application card and the taking of an oath of membership, in addition to the payment of fees and dues. Thus Respondent made clear that it considered the contractual union-security provisions to require full membership rather 232 NLRB No. 49 and sent identical letters to Cabading and Haff stating: "Your request for resignation is inappropri- ate because under the collective bargaining agree- ment you are required to maintain your membership in the union as a condition of employment. (Article I. D. 1. a and c) [referring to the contractual union- security provisions]."' The clear implication of Respondent's letters to Cabading and Haff was that their employment depended on full membership in Respondent and that if they resigned Respondent would cause them to lose their jobs. The implied threat of job loss if employees withdraw from full membership in Re- spondent constitutes as great a restraint on employ- ees' exercise of statutory rights as the implied threat of job loss if employees do not become full members of Respondent. In either case the threat of adverse job action is implicit in the statement that full membership is a condition of employment. And, in both cases, Respondent's implied threat tends to prevent employees from exercising the right guaran- teed them by Section 7 of the Act to refrain from union activities, 2 except as provided in Section 8(a)(3). Accordingly, we find that Respondent's refusal to accept the resignations of employees Cabading and Haff on the grounds that full membership is a condition of their employment restrained and coerced them in the exercise of rights guaranteed them by Section 7 of the Act, in violation of Section 8(b)(1)(A) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, United Stanford Employees, Local 680, Service Employees International Union, AFL-CIO, Palo Alto, California, its officers, agents, and representa- tives, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 1(c) and reletter the subsequent paragraph accordingly: "(c) Enforcing the union-security provisions of the collective-bargaining agreement with The Leland Stanford Junior University by refusing to accept the resignations of employees, on the grounds that full membership in the Union is a condition of employ- ment." than "financial core membership" as defined by the Supreme Court in N L.R.B. v. General Motors Corporation, 373 U.S. 734 (1963). 2 We refer to those activities required by full union membership, and not to the payment of fees and dues involved in "financial core membership." See General Motors Corp., supra. 326 UNITED STANFORD EMPLOYEES, LOCAL 680 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT enforce the union-security provisions of our collective-bargaining agreement with The Leland Stanford Junior University by notifying employees of this Employer that they are required to sign our membership application or take our oath of membership or that they are required to perform any obligation of union membership other than the tender of the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership in our Union. WE WILL NOT enforce the union-security provisions of our collective-bargaining agreement with The Leland Stanford Junior University by instituting and maintaining a lawsuit against employees of this Employer for an object of compelling them to sign our articles of member- ship or to compel them to perform any obligation of union membership other than the tender of the periodic dues and initiation fees uniformly re- quired as a condition of acquiring and retaining membership in our Union. WE WILL NOT enforce the union-security provisions of our collective-bargaining agreement with The Leland Stanford Junior University by refusing to accept the resignations of employees on the grounds that full membership in our Union is a condition of employment. WE WILL NOT in any like or related manner restrain or coerce employees of The Leland Stanford Junior University in the exercise of their rights guaranteed by Section 7 of the Act. UNITED STANFORD EMPLOYEES, LOCAI. 680, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case, held on April 12, 1977, is based upon a Sec. 7 of the Act provides: "Employees shall have the right to self- organization, to bargain collectively through representatives of their own choosing ... and shall also have the nght to refrain from any or all such charge filed on April 22, 1976, as amended on January 24, 1977, by The Leland Stanford Junior University, herein called the Employer, against United Stanford Employees, Local 680, Service Employees International Union, AFL- CIO, herein called Respondent, and a complaint issued on February 9, 1977, by the General Counsel of the National Labor Relations Board, herein called the Board, alleging that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(IXA) of the National Labor Relations Act, as amended, herein called the Act. Respondent's answer denies the commission of the unfair labor practices. Upon the entire record, from my observation of the demeanor of the witnesses, and having considered the posthearing briefs, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER INVOLVED The Employer, The Leland Stanford Junior University, is a private nonprofit institution of higher learning located in the State of California which annually receives gross revenues, excluding contributions not available for operat- ing expenses, in excess of $1 million and annually purchases in excess of $50,000 of goods and services directly from suppliers located in States other than California. Respondent admits, and I find, that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent, United Stanford Employees, Local 680, Service Employees International Union, AFL-CIO, ad- mits, and I find, that it is a labor organization within the meaning of Section 2(5) of the Act. IIn. THE UNFAIR LABOR PRACTICES A. The Questions for Decision Section 8(b)(1)(A) of the Act in part reads: "It shall be an unfair labor practice for a labor organization . . . to restrain or coerce . . . employees in the exercise of the rights guaranteed in Section 7: Provided, that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein .... " The complaint alleges Respondent violated Section 8(b)(IXA) as follows: (a) Distributed notices to newly hired employees "de- manding or requiring them to join and become full members of Respondent"; (b) "[M]aintained a grievance against [the Employer] seeking to require employee Charles Hall to become a full member of Respondent"; (c) "[I ]nstituted and maintained a court suit against employees Charles Hall, Lupe Del Real, and Ed Bartal, seeking to compel said employees to become full members of Respondent"; and activities except to the extent that such nght may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a(3)." 327 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) "[R]efused to permit employees Jimmy Cabading and Richard E. Haff to resign from full membership in Respondent." B. The Selling Respondent is the exclusive collective-bargaining repre- sentative for a complement of the Employer's employees employed in an appropriate unit. Its initial collective- bargaining agreement with the Employer was executed June 24, 1974, and was effective from that date until August 31, 1976. The union-security provisions which are included in article I, section D of the 1974-76 agreement read as follows: D. Union Security 1. Union Membership, Dues, and Fees a. Union Members Each worker who is a member of the Union in good standing on the date of the signing of this agreement and each worker who thereafter becomes a member shall as a condition of continued employment maintain their member- ship in the Union in good standing. b. Non-union Members Each worker hired prior to the date of the signing of this Agreement who is not a member of the Union in good standing on the date of signing of this Agreement shall within thirty-one (31) calen- dar days after the signing of this Agreement as a condition of employment either acquire and maintain membership in the Union in good standing or tender to the Union a service fee equal to the periodic dues uniformly required as a condition of membership in the Union. c. New Hires (I) Union Membership Each worker hired on or after the date of signing of this Agreement shall, as a condition of employment, on or before the completion of the trial period acquire and maintain membership in the Union in good standing. (2) Agreement Both the University and the Union shall undertake to advise workers hired subsequent to the date of signing of this Agreement of their obligations under this Article. For this purpose the University shall supply newly hired workers within the first week of work an informational packet which the Union shall provide for distribu- tion. d. Dues and Fees (1) Deduction Any worker required to pay periodic member- ship dues or equivalent service fees to the Union as a condition of employment under this Article, will be deemed to have satisfied their obligations for any period (after dues or fees deduction begins) in which they have had a payroll deduc- tion authorization on file with the University. (2) Non-payment Upon receipt of written notice from the Union of the failure of any worker to comply with Section D. 1. a, b, or c, above, as applicable, the University within ten (10) working days shall separate the worker from employment for just cause. (3) Other Grounds No worker shall be separated for non-mem- bership in the Union if the University has reasonable grounds for believing that the Union's request is for reasons other than the failure of the worker to remain in good standing, which means only the obligation to tender periodic dues uniformly required as a condition of membership in the Union. On October 27, 1976, the parties entered into a successor agreement which contains union-security provisions identi- cal to the ones set forth above. But the parties, as a part of the new agreement, entered into a letter of understanding which in substance states that the contractual requirement that employees shall acquire and maintain membership in good standing as a condition of employment "means only the obligation to tender periodic dues uniformly required as a condition of membership in the Union." Also it was agreed that the "informational packet" which Respondent gives to the Employer for distribution to new employees would include a letter informing the employees that the contractual requirement that they become and remain members of Respondent as a condition of employment does not mean they must join Respondent but only means they must pay Respondent monthly membership dues. C. Respondent Notifies New Employees They Are Required To Become Members of Respondent The facts pertinent to the allegation that, in violation of Section 8(bXl)(A) of the Act, "Respondent has caused notices to be disseminated to newly hired employees demanding or requiring them to join and become full members of Respondent" are undisputed and briefly summarized. Throughout the term of the 1974-76 collective-bargain- ing agreement employees who were new to the contractual bargaining unit, soon after they began work, were notified by Respondent that, after they completed their trial period (normally 90 days), pursuant to the contractual union- security provisions, they were required to join Respondent and were told that this meant filling out a membership 328 UNITED STANFORD EMPLOYEES, LOCAL 680 application card and taking an oath of membership. (G.C. Exh. 12) Section 8(b)(IXA) of the Act broadly interdicts any union conduct threatening job security of employees because of the employees' refusal or failure to abide by union membership conditions. E.g., Marlin Rockwell Corporation, 114 NLRB 553, 555-556 (1955). Respondent's notification to newly hired employees that they were required to fill out a membership application and take Respondent's oath of membership constituted an implied threat of reprisal calculated to interfere with the employees' statutory right to refrain from any and all union activities.2 This conduct was not legitimatized by the valid union- security provisions in the 1974-76 collective-bargaining agreement between Respondent and the Employer. In construing the union-security proviso (proviso (B) to Sec. 8(a)(3) of the Act) the Supreme Court has held that "it is permissible to condition employment upon membership, but membership, insofar as it has significance to employ- ment rights, may in turn be conditioned only upon payment of fees and dues. 'Membership' as a condition of employment is whittled down to its financial core." General Motors Corporation v. N. LR.B., 373 U.S. 734, 742 (1963). Also see N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 197, fn. 3 (1967), and Amalgamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 284 (1971). Likewise, it is also clear that where an employee pays the required dues and fees, but fails to obey some union-imposed obligation, such as taking a membership oath or signing a membership application, an employer who discharges or a union that attempts to cause or causes the employee's discharge for that reason, respectively violates Section 8(aX3) and 8(b)(2) of the Act. Union Starch & Refining Company, 87 NLRB 779 (1949), enfd. 186 F.2d 1008 (C.A. 7, 1951); Local No. 749, International Brotherhood of Boilermakers v. N.L.R.B., 466 F.2d 343 (C.A.D.C., 1972); N.LR.B. v. Hershey Foods Corporation, [Sequoia Employers Council], 513 F.2d 1083 (C.A. 9, 1975). Nevertheless, despite this clearly delineated statutory scheme permitting unions, in the administration of contractual union-security provisions, to only impose financial core obligations upon employees, Respondent told employees they were required to become members of Respondent and told them that membership meant filling out a membership application card and taking a member- ship oath.3 I find that by engaging in this conduct Respondent reasonably tended to restrain and coerce employees in their statutory right to refrain from abiding by union membership conditions. Accordingly, by engag- 2 Respondent did not tell the employees in haec verba that these requirements were a condition of employment but. nonetheless, I am of the opinion that the statement reasonably tended to restrain or coerce the employees within the meaning of Sec. 8(bX I KA) of the Act. Cf. International Union of Electrical. Radio and Machine fWorkers, Local 601, AFL-CIO ( Westinghouse Electric Corporation), 180 NLRB 1062 (1970). : The record does not support Respondent's contention that in informing new employees about their union shop obligations it simply used the language of the statute. As found, supra. Respondent, in speaking to the employees about their union shop obligations, defined "membership" in terms of the employees filling out a membership application and taking an oath of obligation. Respondent argues that the claim that a union shop employee has no "membership" responsibility other than the payment of dues and an ing in this conduct Respondent violated Section 8(b)(l)(A) of the Act.4 D. The Hall Grievance The complaint alleges that Respondent violated Section 8(b)(1)(A) of the Act in that it has "maintained a grievance against [the Employer] seeking to require employee Charles Hall to become a full member of Respondent." The facts which are undisputed are set forth herein. In June 1974, when the 1974-76 collective-bargaining contract was executed, Charles Hall was employed by the Employer outside of the contractual bargaining unit. On September 1, 1974, Hall was reclassified by the Employer and transferred to a job within the contractual bargaining unit. When this occurred the Employer advised him that he was obligated to pay Respondent the regular periodic dues uniformly required as a condition of membership. The Employer did not advise him that he was a "new hire" within the meaning of the contractual union-security provisions, nor did it advise him that he was required to become and remain a member of Respondent. Likewise, the Employer did not give Hall a copy of the form letter which it regularly supplied to employees, new to the bargaining unit, which informed them of their obligation to join Respondent under the contractual union-security provisions. Following his transfer into the bargaining unit, Hall executed a dues checkoff authorization but did not pay an initiation fee or join Respondent. On February 27, 1975, Respondent's president, pursuant to the contractual grievance-arbitration procedure, filed a "charge," herein called a grievance, against the Employer alleging that Hall "has not complied with Article l.D.lc.(l)" 5 of the collective-bargaining agreement. The action required to settle the grievance was stated as "in or out." The parties were not able to resolve the grievance, so, pursuant to the contractual grievance-arbitration proce- dure, they submitted the matter to an arbitrator, David Karasick, for final binding arbitration. The Employer argued before the arbitrator that the grievance was not arbitrable since Respondent was not contending the Employer had acted in violation of the contract but was merely seeking an advisory opinion concerning the meaning of the contract. Respondent agreed that it was seeking an opinion as to the meaning of the union-security provisions of the contract but argued to the arbitrator that its grievance was arbitrable because the Employer, in classifying Hall as falling within the agency shop rather than the union-shop proviso of the contract, had injured Respondent in at least three respects: (I) The initiation fee "is very questionable." In support of this contention Respondent refers to the fact that the employees involved in Union Starch, supra, were willing to join the union and that the Supreme Court in General Motors, supra, indicated that "the employee may have to become a 'member' under a union shop contract, in the sense that the Union may be able to place him on its rolls" (373 U.S. at 743-744). These contentions. however, have been rejected previously. Hershey Foods Corporation, 207 NLRB 897, 901 902 (1973), enfd. 513 F.2d 1083. 1086-87 (C.A 9, 1975). 5 This provision which is included in the contractual union-security provisions, as set forth, supra, provides that "each worker hired on or after the date of the signing of this agreement shall, as a condition of employment, on or before the completion of the trial period acquire and maintain membership in [Respondent ] in good standing." 329 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employer failed to advise Hall, as it did all new hires, that it was necessary for him to join Respondent as required by article l.,D.,l.,c. (2) The Employer took the position that, as an agency-shop employee, Hall has no obligation to become a member of Respondent. (3) The Employer deprived Respondent of the basis for a civil suit against Hall for failing to pay his initiation fee and become a member of Respondent on the theory that if Hall had been properly classified by the Employer as subject to the terms of the union-shop proviso, the Employer's offer to him of a position within the contractual bargaining unit would have been made on condition that he join Respondent and, by accepting such an offer, Hall would have become a party to an agreement with the Employer of which Respondent was a beneficiary and, as such, could enforce its legal right in a civil suit against Hall. In this last respect Respondent, citing the Union Starch6 line of cases, acknowledged to the arbitrator that it could only move against Hall outside the confines of the collective-bargaining agreement, that it could not legally ask the Employer to terminate Hall for not joining the Respondent and was not seeking Hall's termination, but was grieving "first of all, because the [Employer's] conduct has deprived us of a civil suit for damages and possible specific performance; and, second, because the [Employer] failed to advise Hall of his obligation to become and remain a member." On December 26, 1975, the arbitrator issued his OPINION AND AWARD concluding that the matter raised by the grievance was arbitrable and, with respect to the question raised by the grievance, concluded that "with respect to the duties and obligations created by the Union Security Clause (Article I.D.I.), Charles Hall is in the Union Shop category (Article I.D.l.c.) rather than the Agency Shop category (Article l.D.l.b.)." In concluding that the griev- ance was meritorious the arbitrator acknowledged that Respondent was not privileged to take any action against Hall within the confines of the contractual union-security provisions and observed that, "what relief beyond the confines of the contract the Union may be entitled to seek either by way of civil suit against Hall for damages or specific performance is a matter for the courts to determine at such time as theirjurisdiction may be invoked." I do not agree that by maintaining the grievance involved herein Respondent violated Section 8(b)(l)(A) of the Act.7 Recently in California Dump Truck," the Board held that a respondent union's resort to the contractual grievance-arbitration procedure to enforce an unlawful contract clause did not constitute a violation of the Act because, as the Board, citing Television Wisconsin, Inc.,9 P Union Starch & Refining Company. 87 NLRB 779 (1949). 7 I reject Respondent's contention that the instant situation is a proper one for the Board. under the doctnne enunciated in Spielberg Manufacturing Cornpanr'. 112 NLRB 1080 (1955), to withhold its jurisdiction and defer to the arbitrator's decision. Here, the question for decision in the unfair labor practice proceeding whether the processing of the Hall grievance violated the Act was neither presented nor considered in the arbitration proceeding See Raytheon Compan), 140 NLRB 883, 884-886 (1963). DC Internationl. Inc. 162 NL RB 1383, 1384-85 (1967): Fleer Distributing Service. Inc., 200 NL.RB 196 (1972). IleaWs, High.uar. Building and Construction Teamsters Committee for Northern (California IB'CW&HA (California Dump Truck Owners Associa- tion), 227 NLRB 269, 274 (1976). 11 224 Nl RB 722. fn. 2 (1976). explained, "[i]t does not appear from the record that the grievances were filed for the purpose of accomplishing an unlawful object." Here, the whole record establishes that the disputed grievance was not processed for the object of compelling Hall to join Respondent or the Employer to terminate him for refusing to do so but it was processed to secure a determination from an arbitrator, in the nature of an advisory opinion, as to whether Hall, and others in his situation, were covered by the union-shop rather than the agency-shop proviso of the contractual union-security agreement. In processing the grievance against the Em- ployer, Respondent did not seek to have the Employer engage in any conduct which was calculated to restrain or coerce Hall in the exercise of his rights guaranteed by the Act. Under the circumstances, I shall recommend the dismissal of the portion of the complaint alleging that Respondent's grievance against the Employer, involving employee Hall, violated Section 8(b)(1)(A) of the Act.t 0 E. The Lawsuit The complaint alleges that from April 14, 1976, until approximately May 20, 1976, in violation of Section 8(b)(l)(A) of the Act, "Respondent instituted and main- tained a court suit against employees Charles Hall, Lupe Del Real, and Ed Bartal, seeking to compel said employees to become full members of Respondent." The undisputed facts are set out herein. In June 1974, when the 1974-76 collective-bargaining contract was executed, employees Bartal and Del Real, as well as Hall, were employed by the Employer outside of the contractual bargaining unit. On or about September 1, 1974, all three were reclassified and transferred to jobs within the bargaining unit. They executed dues checkoff authorizations with the Employer and, pursuant to these authorizations, the Employer deducted from their wages and paid to Respondent a sum equal to their membership dues, but none of these employs s have paid an initiation fee or joined Respondent. On December 26, 1975, Arbitrator Karasick issued his OPINION AND AWARD in the case involving Respondent's grievance against the Employer involving Hall, discussed, supra, wherein he concluded that employees such as Hall, Del Real, and Bartal, who were employed prior to the execution of the collective-bargaining agreement but were subsequently transferred into the contractual bargaining unit, were covered by the union-shop provisions of the contract rather than the agency-shop provisions. o1 I reject General Counsel's contention that the processing by Respon- dent of the grievance violated 8(bXlXA) because it was Respondent's subjective intent to use a favorable arbitrator's decision as a means to bring a lawsuit against Hall for an unlawful object. California Dump Truck, supra, which held that the processing of a grievance is not unlawful unless the record reveals it was filed for "the purpose of accomplishing an unlawful object," cited as support for this proposition, Television Wisconsin, supra, wherein the Board, in concluding that a respondent union violated 8(b)(1)(A) by filing a lawsuit, stated: "We agree with the Administrative Law Judge's finding that the Union's action in filing a suit to enforce an unlawful union-security clause violated Sec. 8(bXI)(A) of the Act - not because of the Union's subjective intent but because of the unlawful objective sought by the Union," 224 NLRB 722, fn. 2 (emphasis supplied). 330 UNITED STANFORD EMPLOYEES, LOCAL 680 On or about March 4, 1976, Bartal and Del Real received the following identical letters from Respondent's member- ship secretary: . . . in November 1975, 1 informed you that as a new member of the bargaining unit you are required to join the Union. Since then, an arbitrator has upheld the Union's position in this matter. Your initiation fee is now $50, since you have passed the 60 day period since notification. I am enclosing a membership application card for your convenience. Please complete and return with the $50 initiation fee .... The employees apparently ignored these letters. On April 14, 1976, Respondent filed a COMPLAINT FOR BREACH OF CONTRACT, AND SPECIFIC PERFORMANCE in the Superior Court of the State of California, County of Santa Clara, against Hall, Del Real, and Bartal. The complaint, in substance, alleged as follows: In or about January 1976 the Employer entered into separate oral employment contracts with the defendant employees wherein the Employer offered to employ them within the bargaining unit covered by the 1974-76 collective-bargaining agree- ment upon the condition that they promise to pay an initiation fee to Respondent and to join and maintain proper membership in Respondent; the aforesaid employ- ment contracts were entered into between the defendants and the Employer for the benefit of Respondent; the Employer performed its part of the bargain but each defendant breached his part of the bargain by not performing his promise to pay the Respondent's initiation fee and to join and maintain membership in Respondent. In order to remedy the alleged breach of contract, Respondent sought from the court an order which, among other things, directed the employees "to sign the articles of membership in [Respondent] and do all other acts necessary to join and maintain proper membership in [Respondent ]." I1 On April 26, 1976, the Employer filed its charge in the instant case alleging in substance that Respondent violated Section 8(b))X(A) of the Act by bringing the aforesaid lawsuit against the three named employees to compel them to become members of Respondent. On April 29, 1976, Respondent wrote Hall, Del Real, and Bartal that "to prevent any prejudice to your rights arising out of the situation in which you filed an unfair labor practice charge with the [Board] we are extending your time to answer the complaint filed against you on April 14, 1976, [until]. . . June i, 1976, (for Del Real), June 2, 1976, (for Bartal), and June 6, 1976, (for Hall)." On May 18, 1976, Respondent in connection with the lawsuit filed a REQUEST FOR DISMISSAL without prejudice to refiling its complaint, which request was granted by the court on May 24, 1976. The complaint in this case issued on February 9, 1977. :l Also Respondent sought payment of its initiation fee as well as $50 compensatory damages from each employee with interest plus court costs. On April 8, 1977, 4 days before the commencement of the hearing in this matter, Respondent, in connection with the lawsuit, filed a REQUEST FOR DISMISSAL, with prejudice, of that part of the complaint which requested specific performance - that Hall, Del Real, and Bartal become members of Respondent - which request was granted by the court the same day. The question for decision is whether Respondent's lawsuit against the employees amounts to impermissible restraint and coercion within the meaning of Section 8(b)(IX)(A) of the Act. Clearly, the filing of this lawsuit reasonably tended to coerce and restrain the employees. Faced with the imposition of the costly burden of defending against the lawsuit, employees may well feel compelled to forego their guaranteed right under the statute not to become full members of Respondent, rather than risk involvement in a lawsuit whose outcome they cannot predict. And, if they choose to litigate, they would be forced to bear the expenses of hiring an attorney whose services would not otherwise be required. However, the Board has long held that, despite the impermissible coercive effect upon employees' statutory rights caused by a lawsuit, as a matter of policy, the "Board should accommodate its enforcement of the Act to the right of all persons to litigate their claims in court, rather than condemn the exercise of such right as an unfair labor practice." Clyde Taylor, d/b/a Clyde Taylor Cornpany, 127 NLRB 103, 109 (1960). But, in those cases involving Section 8(bX 1) of the Act where the evidence reveals that a respondent union has filed a lawsuit in pursuit of an unlawful object, the Board deviates from its general policy of accommodation and finds that the filing of the lawsuit violates the Act. Booster Lodge No. 405, IAM, AFL-CIO (The Boeing Company), 185 NLRB 380 (1970); Wisconsin River Valley District Council of the United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Skippy Enterprises, Inc.), 218 NLRB 1063 (1975); Television Wisconsin, Inc., 224 NLRB 722 (1976); International Organization of Masters, Mates and Pilots, AFL-CIO (Cove Tankers Corporation), 224 NLRB 1626 (1976). This is what occurred in the instant case. Respondent's lawsuit was filed to accomplish the object of compelling employees Hall, Del Real and Bartal "to sign the articles of membership in [Respondent], and do all other acts necessary to join and maintain proper membership in [Respondent]." This was an unlawful objective inasmuch as the Act permits unions to impose only financial core obligations on employees in the administration of contractual union-security provi- sions. General Motors Corporation, v. N.LRIB., 373 U.S. 734 (1963); Union Starch & Refining Company, 87 NLRB 779 (1949), enfd. 186 F.2d 1008 (C.A. 7, 1951); N.LR.B. v. Hershey Foods Corporation, 513 F.2d 1083 (C.A. 9, 1975). Based on the foregoing, I find that Respondent's action in filing a lawsuit for the unlawful object of compelling employees Hall, Bartal, and Del Real "to sign the articles of membership and do all other acts necessary to join and maintain proper membership in [Respondent]" constitutes a violation of Section 8(bX l)(A) of the Act. 331 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The Refusal To Allow Employees To Resign Their Membership in Respondent The complaint alleges that in violation of Section 8(b)(l)(A) Respondent on or about August 20, 1976, "refused to permit employees Jimmy Cabading and Richard Haff to resign from full membership in Respon- dent." The facts which are undisputed are briefly stated. During the time material herein Cabading and Haff were members of Respondent employed by the Employer in positions covered by the 1974-76 collective-bargaining agreement. Cabading, on July 12, 1976, and Haff, on August 10, 1976, wrote Respondent stating that they wished to resign their membership. On August 20, 1976, the membership secretary of Respondent wrote identical letters to Cabading and Haff acknowledging receipt of their letters of resignation and rejected their resignation requests for the following reason: "Your request for resignation is inappropriate, because under the collective bargaining agreement you are required to maintain your membership in the Union as a condition of employment (Article I.D. . a and c) [referring to the contractual union shop provi- sions]." Also the letters informed the employees that, if Respondent had not met their needs and they had specific gripes against Respondent, perhaps they could be resolved and informed them that Respondent's representatives would like to talk to them about the reasons which caused them to submit their resignation requests. I am persuaded that, for the purposes of the National Labor Relations Act, employees Cabading and Haff effectively resigned from Respondent by transmitting their unequivocal resignation requests to the Respondent. "It is now well established that where 'there is no evidence that the employees . .. either knew of or had consented to any limitation on their right to resign' union members are free to resign at will .... "12 Here, Respondent notified Cabading and Haff that the contractual union-security provisions precluded Respondent from accepting their resignation requests. The record fails to establish that the employees here either knew of or consented to this limitation on their right to resign. Under the circumstances the employees were free to resign at will.1 3 In any event, assuming arguendo the employees either knew of or had consented to this limitation on their right to resign, I would still conclude that they were privileged to resign at will where, as here, any justification for the limitation imposed on the employees' right to resign is far outweighed by the extent to which said limitation conflicts with the policies of the Act. See generally Scofield v. N.L.R.B., 394 U.S. 423, 431 (1969). Respondent's use of the contractual union-shop proviso to restrict the right of employees to resign from full union membership frustrates the statutory policy of whittling "membership," as that term is used in contractual union-security provisions, down to its financial core. General Motors Corp. v. N.L.R.B., supra. Respondent has 12 Local 1384, UAW (Ex-Cell-O Corporation), 227 NLRB 1045, 1048 (1977),citing Booster Lodge No. 405, Intl. Assn. of Machinists and Aerospace Workers v. N.LR.B.. 412 U.S. 84, 87-88 (1973), and 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, 217-218(1972). ':' Respondent's bylaws establish a procedure for the processing of resignation applications and provides that a member shall have the right to advanced no reason whatsoever for its necessity of imposing a rule wherein employees who are meeting their financial obligation imposed by the contractual union-shop proviso are precluded, for the duration of the contractual union-shop proviso, from resigning their full "member- ship" in Respondent. Indeed, it is highly doubtful whether this rule, which was the reason Respondent gave to Cabading and Haff for rejecting their resignation requests, is a bona fide rule of Respondent inasmuch as it conflicts with the provision in Respondent's bylaws which in effect states that members have the right to resign within at least 90 days from the date they submit a resignation request. I find, accordingly, that, whether or not the employees knew of or had consented to Respondent's limitation of their right to resign, the provisions of the contractual union- security proviso did not constitute a bar to the employees' resignations involved herein; thus, the employees effective- ly resigned their membership. Cf. Marlin Rockwell Corpora- tion, 114 NLRB 553, 558-560 (1955). I conclude, however, even though employees Cabading and Haff effectively resigned their membership, that Respondent did not violate Section 8(b)(1)(A) of the Act by refusing to permit them to resign their membership. I realize that when union members effectively resign from, and thereby terminate, their contract of membership with a union, they reacquire the full measure of their Section 7 right to refrain from concerted activities. In this circum- stance, for a union to discipline the former members because they fail to support the union after their resigna- tion, restrains or coerces the employees in the exercise of that Section 7 right, without serving any legitimate union interest, hence, it is violative of Section 8(b)(1)(A) of the Act. E.g., N.L.R.B. v. Granite State Joint Board, supra (nonmember fined for strike breaking); District Lodge No. 99 and Lodge No. 2139, IAM (General Electric Company), 194 NLRB 938, (1972) (nonmember fined and suspended from union activities for 5 years for crossing a picket line). The instant case, however, involves no act of discipline or threat of discipline. Respondent has neither disciplined nor threatened to do so if Cabading or Haff fail to support Respondent, and the complaint does not charge Respon- dent with this type of conduct. Rather, the complaint alleges that Respondent's refusal to accept Cabading's and Haffs resignation impermissibly restrained and coerced them from exercising their statutory right to refrain from engaging in union activity. The General Counsel argues that there is an implicit threat of future action inherent in Respondent's refusal to accept the resignations of Cabad- ing and Haff which, like a fine or suspension from membership, is coercive. In other words, the employees may well feel that since Respondent has refused to acknowledge the validity of their resignations it may attempt to discipline them for exercising their Section 7 right to refrain from engaging in union activities. This is sheer speculation. I find that the conduct of Respondent in resign when his or her resignation application has been fully processed or 90 days after the submission by the member of said application, whichever occurs first. The legality of this rule is not an issue in this proceeding inasmuch as Respondent did not rely on it in denying the employees' resignation requests. In any event, the record fails to establish that the employees here either knew of or had consented to this limitation on their right to resign. 332 UNITED STANFORD EMPLOYEES, LOCAL 680 notifying Cabading and Haff that their requests for resignation were rejected does not, by itself, constitute restraint or coercion under Section 8(b)()(A) of the Act.' 4 Accordingly, I shall recommend that this portion of the complaint be dismissed. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In recommending an order remedying the unfair labor practices found herein, I have considered Respondent's contention that the practices have been in part remedied and in whole rendered meaningless by subsequent conduct, thus, no remedy is warranted. Specifically, the unlawful lawsuit was dismissed with prejudice by the court, at the request of Respondent, and in their successor collective- bargaining agreement Respondent and the Employer have agreed that the term "membership" as used in the union- shop proviso means only the obligation of the employees to tender periodic dues, thus making it highly unlikely that in the administration of the union-shop proviso Respondent will ever again be inclined to notify employees they are required to become in effect "full members" of Respon- dent. On the other hand, the unfair labor practices found herein cannot be fairly characterized as minimal or insubstantial or isolated or mere technical violations of the statute. Respondent, for a period of several months, violated Section 8(b)(1)(A) by telling employees they were required to do more than pay union dues and that, pursuant to the contractual union-shop provision, they were required to in effect become and remain "full members" of Respondent and, in the case of those employees who refused to comply with this requirement, Respondent filed a lawsuit, in violation of Section 8(b)(l)(A), to compel them to become "full members" of Respondent. Considering the substantial nature of the unfair labor practices and the fact that the current collective-bargaining agreement still contains a union-shop provision worded in the identical language as the one in effect during the time material herein, I am persuaded, on balance, that the remedial policies of the Act are best effectuated by a cease-and-desist order which imposes upon Respondent a continuing obligation to observe the requirements of the Act and not to engage again in the type of unlawful conduct resorted to herein. CONCLUSIONS OF LAW 1. The Employer, The Leland Stanford Junior Univer- sity, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 14 I am not called upon to decide whether a union's refusal to accept an employee's valid resignation constitutes impermissible restraint or coercion if, at the same time, the union illegally disciplines the employee for engaging in postresignation conduct. 1' In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions and recommended Order herein shall, as provided in Sec. 2. The Respondent, United Stanford Employees, Local 680, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By notifying employees they are required to fill out Respondent's membership application card and to take Respondent's oath of membership, Respondent has en- gaged in unfair labor practices within the meaning of Section 8(b)(X)(A) of the Act. 4. By instituting and maintaining a lawsuit against employees Charles Hall, Lupe Del Real, and Ed Bartal, for the object of compelling them to sign Respondent's articles of membership and do all other acts necessary to join and maintain proper membership in Respondent, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(I)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 15 The Respondent, United Stanford Employees, Local 680, Service Employees International Union, AFL-CIO. its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Enforcing the union-security provisions of its collective-bargaining agreement with The Leland Stanford Junior University by notifying employees of this Employer that they are required to sign its membership application or take its oath of membership or that they are required to perform any obligation of union membership other than the tender of the periodic dues and initiation fees uniformly required as a condition of acquiring and retaining membership in its Union. (b) Enforcing the union-security provisions of its collec- tive-bargaining agreement with The Leland Stanford Junior University by instituting and maintaining a lawsuit against employees of this Employer for an object of compelling them to sign its articles of membership or to compel them to perform any obligation of union member- ship other than the tender of the periodic dues and initiation fees uniformly required as a condition of acquiring and retaining membership in its Union. (c) In any like or related manner restraining or coercing employees of The Leland Stanford Junior University in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at Respondent's business offices and meeting halls copies of the attached notice marked "Appendix." mi 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. 56 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 bs Order of the National Labor Relations Board" shall read "Posted Pursuant (Continuedl 333 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Copies of said notice, to be furnished by the Regional Director for Region 20, shall, after being duly signed by Respondent's representative, be posted by Respondent 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 custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 20 signed copies of the aforementioned notice for posting by the to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Employer, if it is willing, in places where notices to employees are customarily posted. Copies of said notice, to be furnished by the aforesaid Regional Director, shall, after being signed by Respondent as indicated, be returned forthwith to the Regional Director. (c) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. 334