Retail Clerks Intl. Assn. Local 322

80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Retail Clerks International Association, and Retail Store Employees Local 322, and Jack Gray and Glen Conyers, their agents and Roswil , Inc., d/b/a Ramey Supermarkets. Case 17-CB-1336 September 22, 1976 DECISION AND ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On October 1, 1975, Administrative Law-Judge Sidney J. Barban issued the attached Decision in this proceeding.' Thereafter, the General Counsel filed limited exceptions and a supporting brief, and Re- spondent Union filed a brief in opposition to the General Counsel's exceptions? Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- i After issuance of the Administrative Law Judge's Decision, the Compa- ny (Charging Party) and the Union ( Respondent) jointly filed with the Ad- ministrative Law Judge a motion to withdraw charges and complaint for the reason that they had entered into an agreement to settle all issues between them. The Administrative Law Judge notified the parties that the issuance of his October 1, 1975, Decision terminated his jurisdiction in the matter and that he was forwarding the motion to the Board. The General Counsel filed a response to the joint motion to withdraw charges and complaint in which he vigorously opposed dismissal of those portions of the complaint which the Administrative Law Judge found to be meritorious. The Board is of the opinion that the agreement does not fully remedy the unfair labor practices that the Respondent Union has been found to, have committed, to which no exceptions have been filed, and that a meritorious complaint should not be dismissed without the acquiescence of the General Counsel. Accordingly, the joint motion of the Company and Respondent Union is denied. 2 The exceptions and briefs related only to the Administrative Law Judge's ruling that the Union did not violate Sec. 8(b)(2) of the Act by seeking the discharge, under the umon-security clause , of Schudy, a finan- cial core member, for his failure to pay a reinstatement fee required of all members who became 3 months delinquent in dues payments. 3 On September 26, 1975, the Administrative Law Judge granted the Company's motion to withdraw charges alleging a violation of Sec 8(b)(3) in the Union's refusal to execute a collective-bargaining agreement relating to the Aurora and Cassville, Missouri, bargaining unit , and dismissed that portion of the complaint. The order recited that the General Counsel had not opposed granting the motion. On October 2, apparently before receiving a copy of the Administrative Law Judge's October 1 Decision dismissing on the merits similar allegations with respect to the Republic and Seymour bargaining units, the General Counsel filed a motion for reconsideration of the September 26 order on the ground that he had, in fact, opposed the motion. The record clearly shows that the General Counsel had, in fact, opposed the motion . Since the Administrative Law Judge did not consider the Gen- eral Counsel's opposition, we agree that the dismissed portion of the com- plaint relating to the Aurora and Cassville bargaining unit should be rein- stated. Although the Administrative Law Judge did not consider the merits of the 8(b)(3) allegations relating to the Aurora and Cassville bargaining unit, he dismissed on the merits the identical 8(b)(3) allegations with respect to the Seymour and Republic bargaining units , based on the identical factu- al situations and documents The General Counsel filed no exceptions to this ruling and, in his response to the joint motion to withdraw charges and complaint, acknowledged that no issue on this question with respect to any of the three units remains alive Accordingly, we reinstate the allegations with respect to the Aurora and Cassville unit dismissed procedurally by the Administrative Law Judge and dismiss them on the merits for the same reasons the Seymour and Republic allegations were dismissed tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs related to the alleged 8(b)(2) violation and, in the absence of any other exceptions, has decided to af- firm in their entirety the rulings, findings, and con- clusions set forth in the Administrative Law Judge's Decision and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent Union, Retail Clerks In- ternational Association, and Retail Store Employees Local 322, Springfield, Missouri, its officers, agents, and representatives, including Jack Gray and Glen Conyers, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Administrative Law Judge: This mat- ter was heard at Springfield, Missouri, on June 23, 24, and 25, 1975, upon a complaint issued on April 18, 1975, as amended, based on a charge filed on August 21, 1974, and amended on April 9, 1975, by the above-named Charging Party (herein called Ramey or the Company). The com- plaint alleges that the above-named Respondents' (1) vio- lated Section 8(b)(3) of the Act by insisting on the exclu- sion of the Company's agent and attorney, Donald W. Jones, from collective-bargaining negotiations ; (2) violated Section 8(b)(3) and Section 8(d) of the Act by failing and refusing to execute each of the three collective -bargaining contracts provided by the Company, thereby repudiating the oral accord and agreement between the Company and the Union on the terms and conditions of employment of employees in the three described bargaining units covered by the contracts; (3) violated Section 8(b)(1)(A) of the Act by instituting charges and disciplinary proceedings against and attempting to fine 10 named employees for crossing a picket line and working at Ramey's Republic, Missouri, store; and (4) violated Section 8(b)(1)(A) and (2) of the Act by attempting to cause the Company to discharge James Michael Schudy because Schudy refused payment of strike assessments and reinstatement fees to the Union. Respondents' answer denies the commission of the al- leged unfair labor practices, but admits allegations of the complaint sufficient to justify the assertion of jurisdiction i Retail Store Employees Local 322 will be referred to herein separately as the Union, and Retail Clerks International as the International. 226 NLRB No. 20 RETAIL CLERKS INTL. ASSN., LOCAL 322 81 under current standards of the Board (Ramey, in the course of its retail grocery store operations in Missouri, has an annual gross volume of sales in excess of $500,000, and annually purchases goods and services valued in excess of $50,000 directly from outside the State of Missouri), and to support findings that the Union and the International are each labor organizations within the meaning of the Act. Upon the entire record in this case,2 from observation of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Company, and the Respon- dents, I make the following: FINDINGS AND CONCLUSIONS 1. THE ISSUES The major issues in this proceeding are: 1. Whether the Respondents refused to execute certain collective-bargaining contracts in violation of the Act. The Union refused to execute three separate bargaining con- tracts which General Counsel contends had been agreed upon by the Union and the Company for three separate bargaining units, consisting-of certain employees working in (1) Ramey's Republic, Missouri, store, (2) Ramey's Seymour, Missouri, store, and (3) Ramey's Cassville and Aurora, Missouri, stores. The Union denies that it agreed to these bargaining contracts, and further denies that sepa- rate bargaining units exist for Republic, for Seymour, and for Cassville-Aurora, but asserts that employees working in these stores "are covered by one collective bargaining agreement, which includes also employees of the [Compa- ny's] stores in Springfield, Missouri." 2. Whether the Respondents insisted on the exclusion of the Company's counsel, Donald Jones, as 'a bargaining rep- resentative for the Company during bargaining negotia- tions. 3. Whether the Respondents violated the Act by insti- tuting charges and disciplinary proceedings against and "attempting to fine" 10 named employees who had sent in their resignations from membership in the Union and the International before crossing a picket line established at Ramey's Republic store and working behind the picket line. Respondents contend that under the constitution and bylaws of the International and the Union these resigna- tions were ineffective. 4. Whether the Respondent violated the Act by seeking to have the Company discriminate in regard to the employ- ment of James Michael Schudy. 5. Whether, or the extent to which, the International, Respondent Jack Gray, or the Respondent Glen Conyers are individually responsible for the unfair labor practices 2 Subsequent to the close of the hearing in this matter, the Company filed a motion to withdraw a portion of its charges in this matter, which has been marked ALJ Exh. 1, my notice to the parties to show cause has been marked ALJ Each. 2; Respondents' opposition to the motion is marked ALJ Exh. 3; my letter to the parties, dated August 29, 1975, suggesting severance of the issues in this case is marked ALJ Exh 4, General Counsel's opposi- tion to severance of the issues is marked ALJ Exh. 5; and the Company's response is marked ALJ Exh. 6, all of which exhibits have been included in the formal file of this matter for the convenience of the Board. My ruling on the motion has been separately issued. alleged in the complaint to have been committed by all Respondents. This is an issue not discussed in any of the briefs of the parties. II. ALLEGED UNLAWFUL REFUSALS TO BARGAIN A. Preliminary In early 1973, Ramey executed a collective-bargaining contract (herein referred to as the Springfield agreement) with the Union, stated therein to be chartered by the Inter- national, in which Ramey recognized the Union as the rep- resentative of "a unit consisting of all the employees in the Employer's present and future retail establishments located within a radius of forty (40) miles of Springfield , Missouri," with the exclusion of one store manager and one assistant store manager in each store, and "employees whose work is exclusively and wholly performed within a single and sepa- rate meat department, employees whose work is exclusively and wholly performed within a single and separate bakery department, general office employees, main warehouse em- ployees, truck drivers, night watchmen, janitors, and all other supervisors as defined in the Act." This contract was for a term from May 1, 1973, through May 4, 1975, with provision for reopening effective May 1, 1.974, for "the sole purpose of negotiating a second year hourly wage in- crease." Shortly thereafter, Ramey negotiated and executed an- other collective-bargaining agreement, for a term from July 1, 1973, through September 30, 1975, in which the Compa- ny recognized the Union for "a unit consisting of all the employees in the Employer's present and future retail es- tablishments located within a radius of twenty (20) miles of Aurora, Cassville, and Seymour, Missouri," with the exclu- sion of "one bookkeeper in the Aurora, Missouri store," and the various designations excluded from the Springfield agreement set forth above (herein called the Aurora agree- ment). This agreement could be reopened, effective Sep- tember 30, 1974, "for the purpose of negotiating a second year increase for all economic areas of the collective bar- gaining agreement...." It is of significance to note that, as a result of the negotiations for this agreement, employee wages and benefits were somewhat lower in the Aurora agreement than in the Springfield agreement. In late July 1973, Ramey purchased a store in Republic, Missouri, which was within 40 miles of Springfield and within 20 miles of Aurora. A dispute arose as to which contract covered the Republic store, the Union contending for the Springfield agreement, and the Company arguing for the Aurora agreement. The matter was submitted to arbitration. On April 1, 1974, the arbitrator decided that, inasmuch as "both the Springfield and Aurora contracts apply to the Republic store Employees," to the extent that the two contracts containeddifferent provisions "with re- spect to wages, rates of pay, hours and other conditions of employment," the Union and Ramey were required to bar- gain with respect to these subjects. This arbitration decision (notwithstanding that it offered a rather sensible solution to the problem) seems not to have satisfied either side, and apparently was the genesis of the problems in this case. In May 1974 (all dates hereinafter 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are in 1974, unless otherwise noted), the Union called a meeting of the Republic employees at which they voted seven to three to go on strike. On June 6, the Union called a strike against the Ramey Republic store. During the period material to this case, the parties filed charges with the Board and suits in the United States dis- trict court. At least one of these matters has been argued in the United States circuit court of appeals. The record indi- catesthat the Union's principal representative, Jack Gray, did not have a high regard for Ramey and its attorney, Donald W. Jones.3 B. The 1974 Negotiations By letter dated April 8, Gray-sent Ramey the Union's wage= proposals "concerning the opening of the collective bargaining agreement for your employees working within the stores in Springfield, Missouri, and Republic, Missou- ri." Ramey met on several occasions with the Union con- cerning its proposals. Apparently there was considerable controversy, concerning the Union's position that no agree- ment would-be reached with the Company unless the Re- public employees were included in the Springfield unit and covered by the Springfield agreement.' It also appears that x charge was filed with the Board alleging that this consti- tuted a refusal to bargain. In any event, by telegram dated May 2, Gray advised the Company, "as we have stated repeatedly to you in negotiations, ... the Springfield ne- gotiations are separate and apart from any, other negotia- tions we might have with your company. The- strike vote taken concerning your company by this local union was among Springfield store employees only and Republic, Mo., was not a party to the strike vote nor was it an issue." It is further indicated that in these negotiations Ramey was disputing attempts by the Union to interject issues- other than wages into the negotiations, which under the contract was the "sole purpose" for which the Springfield agreement might be'reopened. During this period, the Union was also meeting separately with two of Ramey's competitors in Springfield (Milgrams and Consumers Markets), and there was clearly some concern, as frequently occurs in these situations, that-the Union was favoring the other employers over Ramey. - 1. The May 2 meeting The Union scheduled a membership meeting for the eve- ning of May 2 for the purpose of approving whatever had been agreed upon by the three companies, pursuant to the reopener in their Springfield contracts, or deciding whether to strike. That afternoon representatives of_ all three com- panies met with representatives of the Union, in what was manifestly a last ditch effort to avoid'a work stoppage. In addition to a single representative from Milgrams, Robert Gregory, and one from Consumers, David Glass, in atten- 3 To illustrate:,In answering Jones' letter requesting that the Union sign certain bargaining agreements, Gray, after stating his reasons for refusing, was impelled to unnecessarily tell Jones, "Unless it is'your intent to need- lessly bill your client for sending me this letter, please discontinue this prac- tice." - dance, Ramey was represented by Richard Taylor, its pres- ident, who had participated in the previous negotiations with the Union, and Donald Jones, Ramey's attorney. Gray, Business Representative Glen Conyers, and a com- mittee of Ramey employees represented- the Union. Ac- cording to the testimony of Jones, at the outset of the meet- ing,' Gray pointed=over to Jones and stated, "If that man opens his mouth you can all go." Jones asserted that there- after he did not participate out of concern that this might terminate the negotiations.'-Shortly thereafter, Gray made known his desire that the negotiations break down into a smaller committee, one from each of the companies and Gray and Conyers. Taylor advised Gray of his desire to retain Jones as part of the smaller committee to assist him. Gray stated his disapproval of this, and shortly thereafter Jones left the negotiating session. Taylor supports Jones' testimony. Gray denied that he told Jones not to open his mouth. However, at the earlier arbitration hearing, his testimony was "I don't know as I made that exact statement or not. I could, I don't know. I wouldn't say I said that exactly." Respondent called Glass and employees Orville-Frederick, Charles Campbell, and Stan Yocum to support Gray's tes- timony with respect to this meeting. Glass' testimony was inconclusive. I was not impressed with the employees' testi- mony. Gray's somewhat uncertain testimony was further to the effect that one of the employer representatives called for the smaller committee, but Gray recalled that he strongly requested that the employers select one single spokesman. The breakdown into`the smaller group and the' selection of the spokesman occurred simultaneously, and I am satisfied,' as Jones testified, that it was Gray who called for the smaller committee. It is significant to note, howev- er, that-the effect of this maneuver was only to dispense with the employee committee, and with Jones. 'On the basis of my observation of Jones and Taylor and on consideration of the entire record, and the factors ar- gued in Respondent's brief, I credit the testimony of Jones and Taylor as to these events as set forth above. The'companies and the Union did arrive at a settlement of the issues during the negotiations on May 2 which was accepted by the membership of the Union. Sometime later in May, Gray brought documents entitled "Supplement Agreement Per Wage Reopener Effective May 1, 1974," to a meeting^in Glass" office attended by Taylor, Glass, and Gregory. Some changes were agreed and made to this doc- ument, and each signed a copy of the document for his Company: The document signed by Taylor and Gray pro- vides, first, that section 1, article 2, entitled "Bargaining Unit," of the Springfield agreement is to be amended to include certain counties in southwest Missouri (among them, of significance to this case, Greene and Webster Counties), in southeast Kansas, and in northeast Oklaho- ma; next, for certain changes in working conditions, classi- fications, and wages; and lastly for an extension of the termination date of the Springfield agreement to midnight, ,June 1, 1975. Gray and Taylor also agreed-and attached to the Springfield agreement a letter of agreement, providing, 4 Through typographical error, Jones' testimony at one point refers to this as May 21 RETAIL CLERKS INTL. ASSN., LOCAL 322 "The reaching of the Springfield agreement on May 2, 1974, and-the subsequent signing of the agreement on May 24, 1974, does not change the effect of the arbitrators [sic] award regarding the Ramey's Republic store." It seems evident, and I find that Ramey and the Union did not intend by their agreement on the Springfield re- opener to include the Republic or the Aurora, Cassville, and Seymour stores under-the Springfield agreement. Thus, though Republic is in Greene County, according to the official highway map for the State of Missouri, issued in 1973, and therefore within the literal terms of the agree- ment 'on the reopener, the Union had disavowed an intent to bargain for Republic in these-negotiations. Moreover, very shortly thereafter, the Union went on strike against the Republic store, assertedly for the purpose of bringing that store under the terms and conditions of the Springfield agreement. Similarly, though Seymour is in Webster Coun- ty, and also literally within the Springfield agreement on the reopener, Cassville and Aurora are not and, as dis- cussed infra, the Union shortly thereafter reopened the Au- rora agreement and entered into new memoranda of agree- ment covering Aurora, Cassville, and Seymour, which is inconsistent with Seymour, or Cassville and Aurora, being blanketed under the Springfield agreement by reason of the reopener agreement. 2. The Republic strike settlement Early in 1974, the employees of the Ramey Republic store indicated, through a petition prepared and circulated by the Union, that they wanted to be covered by the Springfield agreement and receive the higher rates of pay in that agreement. As previously noted, after taking a strike vote, the Union began a strike against the Ramey Republic store on June 6. On June 15, Taylor and Joe Yates, another official of Ramey, met with Gray and settled the Republic strike on the basis of a two-page handwritten memorandum brought to the meeting by Gray, by which the Union and Ramey agreed as follows: "(1) The current collective bargaining agreement for the employees of Rameys Super Markets in Springfield, Mo. will also apply to the Republic, Mo. store with the' following changes: (2) The work restriction as set forth in Article 2, Sec. 4 shall not apply to one store man- ager & one assistant manager in Republic, Mo. (3) Article 2, Sec. 1, shall be ammended [sic] to provide for one man- ager, & one assistant manager excluded from the bargain- ing unit in the store in Republic,- Mo.5 (4) All strikeing [sic] employees will be returned to their normal job assignments with no loss of seniority or any other contract benefits. (6) Ammend [sic] Article 12, Sec. 4, to provide for a courtesy clerk classification for the Republic, Mo. store only. The limitations for a courtesy clerk shall be those set forth in the collective bargaining agreement currently in effect be- tween the Ramey Co. & Local 322 for the employees work- ing in Neosho, Mo. only." (7) [wage rates set forth for Pro. Manager, Head Clerk, Stockers-Checkers, and Courtesy 5 It is noted, however, that the Springfield agreement in evidence already excludes one manager and one assistant manager Query as to the purpose of this clause? 83 Clerks. Rates for all but the last began June 16 , 1974, and increased on 9/9/74 and 1/1/75. A note at the side states, "Republic wages only."] At the bottom was : "Agreement to expire Aug. 1, 1975." . Upon the execution of this memorandum, Gray called Republic and directed that the picket line be removed, and the strike was ended. 3. The Aurora agreement reopener At the meeting on June 15, between Taylor, Yates, and Gray, with the Republic agreement settled, Taylor suggest- ed that the Union and Ramey settle the wage issues which were subject to reopening later in the year under the Auro- ra agreement for Aurora, Cassville, and Seymour. Gray assented to this. A wage agreement was reached applicable to Aurora and Cassville, and a separate wage agreement was agreed for Seymour. Taylor insisted that the bargain- ing agreements for the various stores have different expira- tion dates. As Taylor credibly testified, "After a lengthy discussion on this, in talking to Mr. Gray, and we had a strike going on, he agreed to separate expiration dates for each of these contracts." At this point, two additional cop- ies of the first page of the Republic settlement memoran- dum as set forth above were run off on a duplicating ma- chine. The wages for Aurora and Cassville were attached to one such copy, with a notation of September 30, 1975, as the expiration date. On the cover page, "Cassville & Auro- ra" were substituted for "Republic." The wages for Sey- mour were attached to the second such copy of the Repub- lic memorandum with a notation of June 1, 1976 as the expiration date. "Seymour" was substituted for "Republic" on the cover page. These documents were signed by Taylor and Gray. Taylor's testimony is to the effect that each of these doc- uments was intended to be a separate contract, and that the reference to the Springfield agreement , was intended to incorporate the applicable terms of the Springfield agree- ment into each of the separate contracts for each of these localities.. Gray's testimony, on the other, hand, is to the effect that, notwithstanding the different wage rates and different termination dates, the intention was to place all of these localities under the Springfield agreement itself.6 I credit Taylor. From my observation of the two witnesses and from my study of their testimony, I am convinced that Taylor is the more reliable of the two witnesses. In addi- tion, the record as a whole tends to support Taylor's posi- tion rather than Gray's. If the parties had decided to place all of these localities under the Springfield agreement, it- self, one would expect more explicit and -less ambiguous language to that effect in the,memorandum,7 and certainly there would have been no need for three separate docu- ments, since the first page of the Republic memorandum 6 Gray's testimony was that , in response to Taylor's desire to'discuss Cassville, Aurora, and Seymour, "There was some discussion about that we are not going to get into more separate contracts with you, we-will just attach letters to the Springfield agreement We are not going to have anoth- er arbitration like we had on Republic " Gray asserts that Taylor agreed with this 7 It is a familiar principle that ambiguities in such writings are to be construed most strongly against the party preparing the writing See Willi- ston, On Contracts, 3d ed § 621 (1961) 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could have been easily altered to cover all the localities an' one document, and the wage rates for all attached to the one document. The execution of a separate document for each locality, made simultaneously, is a strong indication that separate contracts were intended. The agreement on different expiration dates, moreover, furnishes significant support to Taylor's assertion that he wanted separate con- tracts expiring at different times, so that Ramey would not have to negotiate contracts for all the localities at the same time. Indeed, Gray agreed in his testimony that when the Springfield agreement expired before the term applicable to Cassville, Aurora, or Seymour that expiration, did not affect the latter agreements, and any amendment of the Springfield agreement before the end of the term applica- ble to Cassville, Aurora, or Seymour would not be applica- ble to them- Moreover, as discussed infra, Gray thereafter drew for Ramey separate complete contracts for Seymour, and for Cassville and Aurora, which set forth bargaining units limited to those localities only. There is additionally a dispute as to whether the parties also discussed at this meeting Ramey's desire that a certain penalty provision appearing in the grievance and arbitra- tion article of the Springfield agreement should be elimi- nated from the agreements negotiated at the June 15 meet- ing. This will be considered hereinafter. When Gray stated a desire to dispose of the pending litigation since the con- tracts had been agreed on, the parties agreed that this should be resolved by their attorneys, at a later date. 4. The June 28 meeting a. The memoranda of agreement On June 28, Taylor and Jones met with Gray and his attorney, Benjamin Francka, at the latter's office. At the outset of this meeting, the Union distributed to Ramey for signature three separately typed documents, each of two pages, entitled "Memorandum of Agreement." One of these was for the Ramey stores in Cassville and Aurora, one for Ramey's store in Seymour, and one for the Ramey store in Republic. Each of these provided that "This Mem- orandum of Agreement is to be attached to and become a part of the current collective-bargaining agreement be- tween Roswil, Incorporated, d/b/a Ramey Supermarkets and Retail Store Employees Union Local 322 of South- west, Missouri, in Springfield, Missouri." It was provided that the bargaining agreement in effect for Cassville, and Aurora and Seymour should expire September 1, 1974 (in- stead of September 30, 1975, which was its stated term). Each of these documents also provided for ' the different terms contained in the handwritten documents signed on June-15. Taylor refused to execute these documents, assert- ing that they differed from the terms of the agreements made on June 15. Inasmuch as the Union now contends (in opposing exe- cution of complete contracts for these localities) that the June 15 memoranda are complete, and no further written agreements are necessary, it seems significant that on June 28 the Union thought it necessary to secure execution of these revised memoranda. It is clear that the purpose here was to obtain Ramey's explicit consent to blanket Aurora- Cassville, Seymour, and Republic under the Springfield agreement, which it had failed to do in the June 15 hand- written memoranda, as found above.8 b. The meeting Taylor, Jones, Gray, and Francka testified as to the events of the meeting of June 28. There is some dispute as to whether the meeting was for the purpose of disposing of all pending litigation, since the Republic strike had been settled, or whether the parties were to execute at the meet- ing separate complete agreements for each of the localities covered by the June 15 memoranda. Quite likely each side viewed the meeting from a different. point of reference, guided by their different interests. At the meeting, Jones stated his position that there were three bargaining units involved: Republic, Seymour, and Aurora-Cassville, and insisted that there should be three contracts prepared, each of which should be complete in itself, without letters or addenda, which apparently had been attached to the previ- ous agreements. Jones testified that Francka indicated agreement that there were, indeed, three bargaining units (in addition to Springfield) and, in particular, that the arbi- trator had carved out a separate unit for Republic. Jones further testified that at the close of the meeting Gray had agreed to compile and submit to Ramey a separate com- plete contract for each of the localities, in addition to Springfield. Francka does not seem to strongly challenge Jones' contention that there was general agreement be- tween them that there were separate bargaining units for Republic, for Seymour, and for Aurora-Cassville,9 but as- serts that the Union consistently said that it would not agree to separate contracts for each of these localities, that they were all covered by the Springfield agreement with the various differences previously agreed to. Francka stated that in his opinion all could be covered by one contract though he did not consider this a good procedure. The Union assertedly also took the position that there was, no need for any further preparation of agreements, on the ground that the, handwritten memoranda signed June 15 were sufficient. In support of his contention that Gray had agreed to furnish Ramey separate bargaining contracts for each of the, claimed bargaining units, Jones had reference to a handwritten document which he prepared during the course of the June 28 meeting so stating, which paper he asserts he read to Francka and Gray during the meeting, and to which, he states, they agreed. Francka and Gray testified to, lack of recollection that Jones prepared, such a document, or that he showed or read it to them. Nonethe- less, Francka states that, as far as he recalls, Gray did re- 8 In coming to this conclusion I have noted and discredited Gray's testi- mony that he could not recall when these later typed memoranda were prepared, or when he circulated or gave copses to Jones or Taylor, or that he did not think he ever asked Taylor to sign those memoranda, but that the purpose in preparing them was solely for the information of the union mem- bers affected. 9 Francka states that he said this should be determined by the Board, "that maybe there were separate bargaining units," but they could be cov- ered by one contract. He asserts that it was his position that the arbitrator ..may or may not have [carved out a separate unit at Republic]." RETAIL CLERKS INTL. ASSN., LOCAL 322 fuse during the meeting to go along with this handwritten memo of Jones. Moreover, Gray concedes that by the close of the meeting he had committed himself to send separate complete bargaining contracts to the Company, but insists that this was not for signature, but for the convenience of Ramey in the event there was a future dispute or arbitra- tion involving one or another of the stores in the separate locations. As part of the discussion of the disposition of all pending litigation, during this meeting, Jones had sought to have the Union agree not to discipline the union members who worked at Republic during the strike. The Union refused, stating this was an internal union matter. The parties did not execute an agreement disposing of the pending litiga- tion. To the extent that there is a conflict between the testimo- ny of Respondent's witnesses and those of the General Counsel with respect to this meeting, I credit the latter. Respondent's contention that it was willing to prepare and submit separate complete contracts for the separate units (to contain the separate conditions agreed for each of those units) because that would assist in administration of the working conditions at each unit, while at the same time vigorously asserting that these separate documents cannot be considered separate collective-bargaining contracts, is an evident contradiction in terms. 5. The contracts Within a few days following June 28, Gray sent Taylor three copies each of two contract forms, one for Seymour and one for Cassville and Aurora. The cover page of each was as follows: AGREEMENT Between RETAIL STORE EMPLOYEES UNION LOCAL NO. 322 and ROSWIL, INC., d/b/a RAMEY SUPERMARKETS THIS AGREEMENT, entered into this by and between ROSWIL, INC., d/b/a RAMEY SU- PERMARKETS, hereinafter referred to as the "Em- ployer", and the RETAIL STORE EMPLOYEES UNION LOCAL NO. 322, chartered by the RETAIL CLERKS INTERNATIONAL ASSOCIATION, AFL-CIO, hereinafter referred to as the `Union', and any renewal or extension thereof shall be binding upon the parties hereto, their heirs, executors, admin- istrators, successors, and assigns. Each of these contracts described the bargaining unit covered in the following terms (the sole difference being the names of the locality involved): Section 1. The Employer hereby recognizes the Union as the sole and exclusive bargaining agency for a unit consisting of all employees in the Employer's present and future retail establishments located within the city limits of Seymour, Missouri,10 with respect to wages, 85 rates of pay, hours and other conditions of employ- ment, excluding [the same exclusions appearing in the Springfield agreement above]. Each of these documents contains the different terms and conditions and expiration dates agreed upon by the Union and the Company on June 15. Since the Union had not submitted a separate contract for Republic, the Company reproduced one of the con- tracts submitted by the Union, changed the conditions and termination date to conform to the June 15 agreement, and substituted the words "Republic, Missouri," in the recog- nition clause. An error made in the effective and termi- nation dates was shortly thereafter corrected by the Com- pany. The Company also typed in on the cover page of the respective contracts, the following: "covering store in Re- public, Missouri," "For Store in Seymour, Missouri," and "For Stores in Cassville and Aurora, Missouri." In addition, the Company made certain other changes in these documents: first, the Company removed a page from each of these contracts which provided a certain penalty clause relating to the grievance' and arbitration provisions of the contract. Taylor testified that on June 15 Gray agreed to the elimination of this clause, insisting, however, that Ramey's attorney, Jones, not be advised. Gray denied that he agreed to the elimination of this provision. I credit Taylor." Secondly, the Company added a lengthy clause (sec. 3) in each contract to the effect that this present con- tract was the only contract between the parties 'covering the unit therein described, and superseded any conflicting provisions of any earlier agreement. There is no contention that the Union had explicitly agreed to the language con- tained in section 3 and inserted in the contract at this place. It is noted, however, that the Union itself had previ- ously, in its memorandum of June 28, proposed that the prior agreement covering Seymour, Cassville, and Aurora expire on September 1, 1974 (the effective date of the con- tracts here considered). Gray denied that he had agreed to the insertion of the language typed in by the Company. Lastly, the Company modified an interpretive bulletin at- tached to the contracts (apparently previously attached to the Springfield agreement), which set' forth what store managers and supervisors can and cannot do, by' inserting the following before a list of functions not to be per- formed: "(This applies only to store operational personnel from Company's main office and does not apply to Store Manager or Assistant Store Manager in Republic, Missouri [Cassville and Aurora, Missouri] [Seymour, Missouri])." Gray was first evasive and then uncertain as to whether this insertion changed the agreement between the Union and the Company, referring to the fact that the agreement between them was spelled out in the memorandum of June 10 The second contract substituted "Cassville, Missouri and Aurora, Mis- souri" for "Seymour, Missouri." 11 In this connection I have considered the rather odd condition to this agreement imposed by Gray. I do not believe that Taylor would have fabri- cated this, and I thus infer that Gray had some particular reason for desir- ing this to be withheld from'Jones until later. It appears that Taylor did not tell Jones about this until the end of July. It is also noted that this penalty provision does not appear in the previous contract covering Aurora, Cass- ville, and Seymour. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 15. I find that this language clearly carried out the agree- ment of the parties on this issue. By letter dated July 30, Taylor returned to Gray two signed copies of each of these contracts, with the request that the Union execute one copy each of the contracts and return them to the Company. Gray refused to do-so, and returned these documents to the Company unsigned. By letter dated August 17, Jones, on behalf of the Company, wrote Gray correcting the effective and termination dates in the Republic contract tendered the Union, and again requested that the Union sign the contracts. By letter dated August 20, Gray replied: I am in receipt of your letter dated August 17, 1974, regarding the drafted agreements for Seymour, Cass- ville, and Aurora, Mo. As I have discussed with both you and Mr. Taylor, the memorandum of agreement which was executed by Mr. Taylor as president of Roswil, Inc., d/b/a Ramey Supermarkets, is sufficient. At the time of negotiations, the towns of Seymour, Cassville, Aurora, and Republic would all be covered under the Springfield agreement, with a few excep- tions set forth in the memorandum of agreement, which has been signed by Mr. Taylor several weeks ago. Unless it is just your intent to needlessly bill your client for sending me this letter, please discontinue this practice. The Union has since refused to execute these documents as requested by the Company. C. Conclusions and Analysis 1. The appropriate units The official-highway map of Missouri (1973) shows the following locations for the localities involved in this mat- ter: Springfield is located in Greene County in southwest Missouri. Republic is also in Greene County, some -8 road miles southwest of Springfield. Aurora is almost due south of Republic and a little to the west, approximately 30 road miles from Aurora in Barry County. Seymour is about 27 miles due east of Springfield in Webster County. The indi- cation in the record is that Ramey operates only one store in Republic and one store in Seymour. (Cf. G.C. Exhs: 28 and 29 with G.C. Exh. 27.) Each of these stores is presump- tively a separate appropriate unit. See The Grand Union Company, 176 NLRB 230 (1969). The evidence in this case does not rebut that presumption. The parties have agreed upon significantly different working conditions for each of these localities and, further, that the contracts covering these different working conditions shall expire at different times. The parties have also agreed for distinct and differ- ent working conditions for Ramey employees working in Cassville and Aurora, and that the contract covering those employees shall expire at a different time from the con- tracts covering the other Ramey employees. On the basis of the above and the record as a whole, I find each of the following to constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: 1. All employees employed by Ramey in its estab- lishment located within the city limits of Seymour, Missou- ri, with the exclusions set forth below. 2. All employees employed by Ramey in its estab- lishment located within the city limits of Republic, Missou- n, with the exclusions set forth below. 3. All employees employed by Ramey in its estab- lishments located within the city limits of Cassville, Mis- soun, and Aurora, Missouri, with the exclusions set forth below. Excluded from each of these appropriate units are: one store manager in each store and one assistant store manag- er in each store, employees whose work is exclusively and wholly performed within a single and separate meat de- partment, employees whose work is exclusively and wholly performed within a single and separate bakery department, general office employees, - main warehouse employees, truckdnvers, night watchmen,-janitors, and all other super- visoryemployeesas defined in the Act. In accordance with Respondents' answer, and the entire record in this case, I find that the Union has been at all times material to this proceeding the exclusive representa- tive, within the meaning of Section 9(a) of the Act, of all the employees within each of the appropriate units found above. Although the complaint alleges that all of the Re- spondents constitute the exclusive bargaining agent, I find no evidence to support the contention that the Internation- al, Gray, and Conyers have been designated, recognized, or act as joint representative with the Union. 2. The contracts The Union and the Company, on June 15, signed three separate memoranda of agreement, each of which applied to separate localities (Cassville-Aurora, Seymour, and Re- public) in which the Company operated its business. These memoranda, essentially drafted by the Union, because of their ambiguity, have been the cause of disagreement and discord between the signatories ever since. The Union, thereafter, prepared, two complete `collective-bargaining contracts setting forth the terms applicable to Cassville- Aurora and to Seymour and submitted them to the Com- pany. The Company, using these contracts as a model, pre- pared a bargaining agreement for the third locality in- volved, Republic, inserted certain additional language in each of the three bargaining contracts (which the General Counsel asserts were "either agreed . . . or are inconse- quential"), and the Company signed the contracts and sub- mitted them to the Union for execution. The Union has refused to sign them. General Counsel contends that this violates the Act. It has long been settled, and the Union does not dispute that where an employer and the bargaining representative of the employees are in agreement on the terms of a bar- gaining agreement covering the terms and conditions of the employees' employment, it is required that upon the re- quest of one party to the agreement the other must sign a written contract embodying the terms of their agreement. RETAIL CLERKS INTL. ASSN., LOCAL 322 See Section 9(d) of the Act. This critical act in the collec- tive-bargaining process serves to memorialize the agree- ment, prevent disagreement and discord over the terms agreed to, and thus stabilizes the industrial relations of the employer, achieving the purposes of the Act. See H. J. Heinz Company v. N.L.R.B., 311 U.S. 514 (1941). The Union, however, claims that the original memoranda of agreement are sufficient and no other agreements need be signed, and, in any event, it was not required to sign the contracts transmitted by the Company -because they con- tained language to which the Union had not previously agreed. The first of these contentions-that the Union is excused from executing complete fully integrated bargaining agree- ments because it had previously signed memoranda of agreement-seems to me quite unsound. By its terms, a memorandum is incomplete. By present notation and refer- ence to other material, it serves the parties' immediate pur- pose, as a means to terminate the dispute between them until a more permanent record of their agreement can be prepared. The record here shows that in prior negotiations the Union and the Company had regularly thus settled their negotiations and thereafter regularly executed com- pleted collective-bargaining contracts. Experience with memoranda of agreement shows that, because they are in- complete and sometimes not too clear, they tend to become a source of disagreement and discord unless soon translat- ed into more complete and precise documents. Such was the case here. The memoranda signed by the parties were incomplete and ambiguous, and did not serve' to stabilize working conditions. The bargaining agreements which the Union itself prepared and which it refused to sign, as well as the third agreement based on the contracts drawn by the Union, are more complete and precise and thus less likely to result in disagreements with respect to interpretations of their terms. In a somewhat analogous case, Summit Tooling Company and Ace Tool Engineering Co., Inc., 195 NLRB 479 (1972), where the parties explicitly indicated their intention to en- ter into a complete bargaining contract following their exe- cution of a memorandum of understanding, the employer nevertheless refused to sign the bargaining agreement be- cause, inter aha, the union there had taken the position "that the Memorandum of Agreement was perfectly legal and effective." The Administrative Law Judge, whose deci- sion was accepted by the Board, stated, "Patently this is no defense. Section 8(d) of the Act explicitly requires `the exe- cution of a written contract incorporating any agreement reached if requested by either party."' (195 NLRB at 488.) See also Sears, Roebuck & Co., Inc. 139 NLRB 471, 478 (1962). Cf. Oregon Coast Operators Association, et al., 113 NLRB 1338 (1955), where the Board held that an employer violated the Act by refusing to 'bargain in good faith con- cerning the incorporation into a single instrument terms agreed and contained in various side agreements, but fur- ther stated that "[a]lthough the incorporation in a single instrument of all terms reached in collective bargaining would, ordinarily, appear mutually desirable, 'convenient, and salutary for both parties in administering their con- tract, we cannot hold that under the applicable statutory provisions a request by either party for such incorporation, 87 in all situations, makes it mandatory for the other to com- ply." (113 NLRB at 1348.) In the present case I cannot consider whether the Union's actions constituted bad-faith bargaining because this was neither alleged nor litigated. However, under the circumstances it is appropriate, as previously noted, that the Union be required to execute separate documents in- corporating all of the terms previously agreed to in the sepa- rate memoranda of agreement. First of all, this conforms to the parties' normal, and thus expected practice. Further, the agreements which the Union refused to sign are in the form prepared by the Union itself.12 And, finally, the form of documents prepared by the Union better expresses the understanding of the parties, tending to avoid dis- agreement and discord, and thus stabilizing labor relations. The Union's second objection to signing the contracts submitted by the Company-that the Company had insert- ed language not previously agreed to--has more substance. Neither party is required to sign a bargaining agreement containing terms not previously agreed. See, e.g., Rudnick Land & Cattle Co. and its Divisions-Piute Packing Co., and Rudnick Truck Lines 159 NLRB 477 (1966). As previously found, the Company inserted in the contract forms pre- pared by the Union, and the form prepared by the Compa- ny, a clause in each contract providing that the present contract was the only contract between the parties covering the unit described therein and suspended any conflicting provisions of any earlier agreement. The Union had not, so far as the record shows, previously agreed to the precise language proposed. General Counsel argues that the matter is inconsequential. From the viewpoint of an objective viewer, who is not a party to the agreement, I am inclined to agree with him. However, the Company considered the matter of some consequence because it inserted the clause in the agreement. I cannot deny the Union's right to say the matter is of consequence to it, and to reject the provi- sion, which is what the Union did. For this reason, I must recommend the dismissal of the complaint insofar as it al- leges that Respondents violated Sections 8(b)(3) and 8(d) of the Act by refusing to execute the contracts submitted by the Company for the appropriate units in Republic and Seymour. is 3. The exclusion of Jones At the outset of the May 2 bargaining session, Gray, president and business representative of the Union, ad- vised the Company and other employers participating in that meeting that if the Company's representative and at- torney at that meeting, Donald Jones, spoke at the meet- ing, all of the employers might as well leave. Thereafter, Gray insisted on narrowing the bargaining committees so as to physically exclude Jones from active participation with the Company. The negotiations being at a critical point, the Company acceded. The Union, by this conduct, 12 The one agreement prepared by the Company follows the form pre- pared by the Union and incorporates the terms of the applicable memoran- dum of agreement The Union does not contend otherwise 13I have previously granted the Company's request for permission to withdraw its charge with respect to the Respondents' failure to execute a bargaining contract covering the appropriate unit at Cassville and Aurora, and have dismissed those allegations of the complaint. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to bargain with a designated representative of the Company in collective-bargaining negotiations in violation of Section 8(b)(3) of the Act. See Brotherhood of Teamsters and Auto Truck Drivers Local No. 70 of Alameda County, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Kockos Bros., Inc.; Wis- inger Trucking Service, Inc.), 183 NLRB 1330 (1970). Since Gray is an agent of the Union and clearly engaged in the prohibited conduct, he also violated Section 8(b)(3) of the Act.14 Inasmuch as there is no evidence that Glen Conyers or the International engaged in this conduct or were re- sponsible for it, it will be recommended that the allegations of the complaint asserting that they violated the Act by this conduct be dismissed. III. UNION DISCIPLINE OF REPUBLIC EMPLOYEES A. The Facts As previously noted, Ramey acquired an existing store located in Republic in 1973, after the Company had en- tered into bargaining agreements with the Union for its stores in Springfield and in Aurora, Cassville, and Sey- mour. Each of these contracts contained legal union-secur- ity clauses, and the Union and the Company asserted that one of these two executed contracts applied to the Repub- lic store, although they disagreed as to which one. The em- ployees in the Republic store were told that they had to join the Union and did so.15 During the period in which there was a dispute as to which of the two contracts should be applied to Republic, the Union prepared and the 12 employees in the Republic store signed a petition stating that they wanted to be included in the Springfield agree- ment, "and deserve the rate of pay as set forth in" that agreement. Dissatisfied with the progress of its efforts to have the Republic employees included in the Springfield agreement, in late May, the Union posted notices in the Republic store that a strike vote meeting would be held in Springfield, some 9 miles away. There is some contention that the Union's action in scheduling this vote prevented some em- ployees from attending, but 10 of the 12 employees did come and voted 7 to 3 to authorize a strike. Shortly thereafter, by letter dated May 30 to Gray, the president of the Union, nine of the Republic employees 16 submitted their resignation from the Union and Interna- tional, adding that "we want it to be specifically under- stood that we shall continue to pay initiation fees when due and all periodic dues uniformly required of all members." 14 The effect of this violation is not diminished by the fact that Gray thereafter on June 28 met with Jones and Taylor, without objection, in the office of the Union's lawyer in an attempt to secure some concessions in the interest of the Union. 15 This finding is based on the letter signed by 9 of the 12 employees in the Republic bargaining unit (G.C Exh. 10), which was received in evidence without objection The statement is supported by the existence of the union- security contracts and the record as a whole In the circumstances, hearsay is sufficient to support the finding See Continental Oil Co v. United States, 184 F 2d 802 (1950). 16 John F. Swinney, James Michael Schudy, David R Stocker, David Clark, Randall D Allen, Robert Boyer, Sondra Soutee, DyAnna Short, and Lyndle Dorrell. Union President Gray responded to the nine employees, by letter dated June 4, enclosing the portion of the consti- tution of the International relating to resignation of mem- bers, and advising: "As you know, the Local By-laws, in conjunction, with the International Constitution, provides for up to $100.00 per day assessment for a member who would work behind a picket line established by this organi- zation. It is the full intention of this local to commence strike action on Thursday, June 6, 1974... . The relevant portion of the International constitution enclosed provides: "Any active member who is otherwise entitled to resign his membership while remaining em- ployed within the jurisdiction of the International Associa- tion must give 60 days notice by registered mail to the Local Union in which he is a member before his resigna- tion may become effective." 17 The nine employees involved thereupon sent another let- ter, dated June 5, to Gray and to the president of the Inter- national, stating in pertinent part: Each of the undersigned employees of Ramey's Super- market, Republic, Missouri, were told when Ramey's bought the store that we had to join the union to keep our jobs. Based on that understanding, we signed whatever was presented to us to protect our jobs. We have found out recently, however, that we are not required by law to be formal members of the Union to keep our jobs, but that we are required to only pay the uniformly required dues and fees that your members pay. For that reason, and for the other reasons stated in a letter which we sent to Mr. Gray recently, we have all elected to resign any formal membership status in your organizations, but have indicated our desire and intent to continue making any dues or initiation fee payments required to protect our job status. Mr. Gray has now threatened to not permit us to re- sign and has threatened to cause us be fined $100.00 per day if we work during a strike which Mr. Gray wants to force on us at our store. We are of the opin- ion that a strike is unnecessary and is against our best interests, and we must continue working at this time to earn a living... . On June 6, Gray had a copy of a letter from the Union's attorney hand-delivered to each of the nine employees who had signed the letters of resignation. The letter quoted from section 5 of the international constitution the provi- sions relating to resignation from the Union and the Inter- national, and gave the opinion that any resignation would not be effective for 60 days, and that employees seeking to resign would continue to be members for that period and subject to union discipline. On June 10, a 10th employee at Ramey's Republic store (Blake Simmons) sent in his resignation from the Union, adopting the previous letters. On several occasions the 10 employees who had submit- ted their resignations were summoned to appear before the executive board of the Union in Joplin, Missouri, approxi- mately 58 miles from Republic, first "in anticipation of 17 A similar provision appears in the Union's bylaws (sec. 6). Copies of the bylaws had previously been given to the Republic employees. RETAIL CLERKS INTL. ASSN., LOCAL 322 charges being formally presented," to explain their reasons for working behind the picket line at the Republic store, and later to appear before the executive board acting -as a trial board to answer charges filed against them by Busi- ness Representative Glen Conyers "for failure to honor an authorized picket line." A protest lodged by an attorney for the 10 employees against the hearings being held in Joplin rather than a more convenient place was denied by Gray. On advice of counsel, the 10 employees did not at- tend the trials before the union trial board. Each was found guilty of the charges against them and fined in the amount of $25 for each day worked or the gross amount of earn- ings for each day, whichever is greater, for the duration of the strike. The employees were.notified of this and request- ed,to inform the Union of the days each actually worked during the strike. The action of the Union in fining the 10 employees was appealed to the International Union. On March 5, 1975, the president of the International advised the 10 employees that the actions of the Union had been reversed because the employees had not been properly served with the charges against them prior to their trial. On March 11, 1975, Gray, for the Union, appealed the decision of the international president to the international executive board. So far as appears, this appeal is still pending. B. Analysis and Conclusions It is not a violation of the Act for a union to threaten to discipline a full member of the union for crossing an au- thorized picket line and working behind such pickets, or to summon or try a member, or assess court-collectible rea- sonable fines against a member for such conduct, where the member has violated a proper union rule. See N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967). However, where the member of the union has first resigned from the union, "its power over him ends," even though the union may have no provision in its constitution or bylaws for voluntary resignation of members, and the union violates Section 8(b)(1)(A) of the-Act by seeking to discipline such ex-member. See N.L.R.B. v. Granite State Joint Board, Tex- tile Workers Union of America, Local 1029, AFL-CIO [In- ternational Paper Box Machine Co.], 409 U.S. 213 (1972). In Granite State Board, the Supreme Court stated, quoting from its prior opinion in Scofield, et al. v. N.L.R.B., 394 U.S. 423, 429 (1969): ... §8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union mem- bers who are free to leave the union and escape the rule. [409 U.S. at 216 (1972).]'[Emphasis supplied.] In Granite-State Board, the Court further noted that it was not faced with the problem "of construing a union's constitution or bylaws defining or limiting the circum- stances under which a member may resign from the union. We have, therefore, only to apply the law which normally is reflected in our free institutions-the right of an individ- ual to ;oin or to resign from associations, as he sees fit `subject of course to any financial obligations due and ow- 89 ing' the group with which he was associated." (409 U.S. at 216), and finally cautioned that "[w]e do not now decide to what extent the contractual relationship between union and member may curtail the freedom to resign." (409 U.S. at 217). See also Booster Lodge No. 405, International Asso- ciation of Machinists & Aerospace Workers, AFL-CIO v. N.L.R.B., 412 U.S. 84 (1973); Local Lodge No. 1994, Inter- national Association of Machinists and Aerospace Workers, AFL-CIO (OX Tool Company, Inc.), 215 NLRB 651 (1974). In the Booster Lodge case, the union there fined mem- bers who resigned before crossing the union picket line. Although there also the union's constitution contained no provision for resignation, the union contended that a constitutional ban on strikebreaking binding members not to work behind the union picket line nevertheless applied to these members for the duration of the existing strike. The Court held that employees had a right to resign in the circumstances, and that, in the absence of a showing that members were informed that the union rule against strike- breaking applied even after resignation from the union, the union violated the Act by fining the resigned members. The Court refused to imply that the strikebreaking rule applied to resigned members. In O.K. Tool, the union involved provided that a mem- ber was not relieved of his obligation to refrain from strike- breaking by resigning "during the period of the strike .. . or within 14 days preceding its establishment." The Board there held: Balancing an individual's right under Section 7 to re- frain from concerted activity following resignation from a union against that of a union to maintain soli- darity during a strike, we conclude that the latter must give way. Conformity may be none too high a price for the benefits of union membership. But the choice, at least in the absence of 'reasonable restrictions on resignation, is the individual's to make, not the union's. Should he choose to resign and to forgo the benefits of union membership, the union may not nonetheless seek to exact conformity without regard to the individual's Section 7 rights. In both Booster Lodge and OX Tool, the Court and the Board left open the question of whether a union "might lawfully have placed reasonable restrictions on the circum- stances in which a member could resign." See 215 NLRB 651; 412 U.S. at 88. We are thus here faced with the situa- tion which the Board and the courts have previously de- clined to pass upon. The Union contends that the union rule providing that 60 days' notice must be given to the Union of an intent to resign is reasonable and proper in all the circumstances of this case. It seems manifest on all'the facts that the purpose of the rule, as in the other cases noted, is to prevent members from working during a strike by preventing them from resigning. The Union argues that "the 60-day withdrawal period permits the union to act with some certainty while at the same time giving the mem- ber a reasonable, if not immediate, manner in which to withdraw from the union." However, by the same token, if need for certainty in strike situations would serve to justify a union rule restricting resignation from membership, the 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board would have undoubtedly upheld the union rule in O.K. Tool, which required action only 14 days prior to a strike for a valid resignation. The Board there, balancing the employees' rights under Act against the Union's needs, held employee resignations during the strike valid and, therefore, the restriction on the right to resign invalid. It would seem clear that a like result must follow here. In two other similar cases the Board arrived at a like result. In Local 205, Lithographers and' Photoengravers In- ternational Union, AFL-CIO (The General Gravure Service Co., Inc.), 186 NLRB 454 (1970), the union rule permitted an employee to resign only if he were in good standing and no longer employed in an industry within the union's juris- diction. In International Union, United Automobile, Aero- space and Agricultural Implement Workers, UAW, and its Local No. 647 (General Electric Company), 197 NLRB 608 (1972), the union rule limited resignation of members to a 10-day period at the end of the union's fiscal year, which resignations would then only become effective 60 days thereafter. In the General Electric case, the Board held as to these provisions (197 NLRB at 609): In our view, the 10-day escape period and the 60-day waiting period contained in Respondent's constitution is not significantly different from the provisions we considered in Boeing and General Gravure. Here, as in those cases, the provision imposes such narrow re- strictions as to amount, in effect, to a denial to mem- bers of a voluntary method of severing their relation- ship with the Union. In short, the present provision - does not make it possible for a member to avail him- self of the "strategy" of leaving the Union as recog- nized by the Board in Boeing [footnote omitted] and envisioned by the Supreme Court in Scofield. However, it seems to me that a more clear-cut and defi- nite rule is required. We are here dealing with a specific and fundamental right of employees under the Act-the right to refrain from concerted -activity, to be determined at their choice, not the union's. See O. K. Tool, supra. The employees should not be required to exercise this right at their peril, without guidance from the Board which has the responsibility of administering and interpreting the Act. Moreover, the circumstances of this case suggest a proper rule which will carry out the intent of Congress and the purposes of the Act. It has long been clear that Congress intended in enacting the Taft-Hartley amendments that employees should not be required to undertake or maintain any obligation to the labor organization beyond the obligation to "tender the periodic dues and' initiation fees uniformly required as ,a condition of acquiring or retaining membership," unless the employee voluntarily assumed other obligations. See N.L.R.B. v. General' Motors Corporation, '373 U.S. 734 (1963). In the present case, as has been found, both the Union and the Company considered that the employees were covered by a I union-shop contract, and the employees were informed that they had to join the Union and did so. There is no evidence that the employees were advised that they had the option not to join if they would tender the dues and fees required. Under the circumstances, it must be held that the employees joined under compulsion. How- ever, the record does show that when the employees ten- dered their resignations, they did advise the Union that they were willing to continue paying such legal dues and fees as might be required. In my opinion, where it is not shown that the employees were clearly advised of their op- tion not to join a labor organization before assuming mem- bership in that union, the most that should be required of the employees as a condition precedent to resignation from membership is a commitment to continue paying the peri- odic dues and fees which may uniformly be required of members under the Act. In that way, the employee is guar- anteed his rights under the Act, while at the same time continuing financial support to the bargaining representa- tive which must represent him. For the reasons stated, and on the record as a whole, I find that the Union, by instituting charges and disciplinary proceedings against and fining John F. Swinney, James Michael Schudy, David R. Stocker, David Clark, Randall D. Allen, Robert Boyer, Sondra Soutee, DyAnna Short, Lyndle Dorrell, and Blake Simmons, because of protected activities engaged in by those employees after they had resigned from membership in the Union, violated Section 8(b)(l)(A) of the Act. Although the complaint alleges that the International Union, Conyers, and Gray also violated the Act by this activity, General Counsel does not treat with their respon- sibility for such conduct in his brief. It is readily apparent that the International has neither authorized nor ratified the action of the Union in charging and disciplining these employees for working behind the picket line. In fact, to this point, the president of the International has reversed the Union's action, even though the International' s execu- tive board is presently considering the Union's appeal from the international president's order. Although the legal situ- ation might be different should the International place its imprimatur on the Union's action, in the circumstances of this case I cannot find that the International is responsible for the Union's action in this matter. However, Business Representative Conyers and Gray (who is also president of the,Union) played essential roles as agents of the Union in charging, trying, and fining the employees involved, and thus themselves violated Section 8(b)(1)(A) of the Act. IV. THE ATTEMPT TO HAVE JAMES MICHAEL SCHUDY DISCHARGED A. The Facts Schudy was one of the nine employees at Ramey's Re- public store who, on May 30, sent their written resignations from membership to the Union, and who thereafter worked during the Republic` strike. Thereafter, the Union's president, Gray, having learned that Schudy had applied for membership in -a local musicians' union, on June 18, wrote a representative of that union advising that during the Republic strike,Schudy had worked "behind the picket line for ten days, forcing .great hardship on fellow mem- bers. His activities during the strike are not those engaged in by a good trade unionist and his application into any union should be questioned." Schudy, notwithstanding his commitment, made when he resigned from the Union,'to pay the periodic dues and RETAIL CLERKS INTL. ASSN., LOCAL 322 fees regularly required of members, became delinquent in his dues for certain months thereafter. The union bylaws (sec. 10) provide that dues are payable on the first of the month for which they are due, and if paid by mail, the payment must be postmarked on the first of the month. If not paid on or before the first of the month, the dues for that month are increased $1. It is fur- ther provided that "Any member two calendar months in arrears for dues or other financial obligations to the Local Union shall stand suspended if same are not paid on or before the first day of the third month;" that "The rein- statement fee shall be the regular initiation fee . . . plus any moneys owed to the Local Umon at the time of sus- pension," and that "No partial payments can be accepted." There seems no question but that Schudy became delin- quent in payment of the amounts due as dues for July and August. Schudy drew a check in the amount of $24, in favor of the Union, dated September 1, which was received by the Union in an envelop postmarked September 6. Gray, on behalf of the Union, returned this check to Schu- dy on'September 14, advised that he had been suspended, and that "before dues can be accepted, you would have to join and pay your reinitiation fee of $50.00, plus your back dues of $27.00, a $5.00 strike assessment 18 plus a pending liability for working behind a picket line in Republic, Mis- souri." The letter further informed Schudy that his liability for working behind the picket line was $316.80, and that Gray was requesting advice from "the Divisional Office" as to whether Schudy had to repay this amount before he could rejoin. Nevertheless, the letter concluded, ". . . un- less these liabilities are met within five days, your employer will be notified-and you will not be able to continue em- ployment at the Ramey store until you once again become a member in good standing in this Local Union." On September' 18, Ramey was notified by letter from Gray that Schudy had been suspended from the Union as of September 1, "and cannot return to work until his rein- statement fee of $82.00 is paid at the local office." It ap- pears that the Company nevertheless did not terminate Schudy. On September 26, Gray wrote Schudy, informing him, inter alia, "you were suspended from the Local Union on September 1, 1974, for non-payment of dues during the months of July, August, and September. Consequently, your rejoining fee would be your past dues, plus the $5.00 strike assessment, plus' the initiation fee of $50.00, which would be a total sum of $82.00." The letter advised, "Your employer has been notified that you are no longer to work until this obligation has been taken care of." Schudy has, in fact, since paid the $82 requested by the Union. He has not paid the fine assessed for working during the Republic strike. B. Analysis and Conclusions The General Counsel contends that the Union violated Section 8(b)(2) of the Act by attempting to have Schudy 18 This strike assessment was not connected with the strike at Republic It is also noted that the amount of back dues stated includes $3 for late pay- ment for 3 months. 91 discharged because of his failure to pay the $ 5 strike assess- ment and the $50 reinstatement fee demanded by the Union.19 The law seems clear that even if Schudy were a member of the Umon, working under a valid union-security con- tract, the Union would not be justified in seeking his dis- charge or termination from employment because he had failed to pay a strike assessment, and therefore violated Section 8(b)(2) and (1)(A) of the Act by attempting to have Ramey terminate Schudy in substantial part because he did not pay such assessment. See N.L.R.B. v. Food Fair Stores, Inc., 307 F.2d 3 (C.A.-3, 1963). I further find that inasmuch as Gray acted as the agent of the Union in seek- mg to have Schudy discharged, in these circumstances, he also violated Section 8(b)(2) and (1)(A) by this action. The legal situation with respect to the reinitiation fee is not so clear. It is well established that where a valid union- security contract exists the bargaining representative can insist, on threat of loss of employment, that an employee who has lost membership in the union pay a reinstatement fee uniformly required "as a condition to employees ac- quiring or regaining membership." See Metal Workers' Al- liance, Incorporated (TRW Metals Division, TRW, Inc.), 172 NLRB 815, 816 (1968). However, the Board does not seem to have passed upon the obligation of such, an employee who does not wish to acquire or regain membership in a union, but merely to comply with his financial obligations under a union-security agreement. In such instance, the additional payment is not an incident of acquiring mem- bership, and the benefits of membership, but, in this case, an additional penalty for late payment of dues. Neverthe- less, the $50 fee which the Union here demanded of Schu- dy is one which it seems to uniformly require of employees who are 3 months' delinquent in dues payments. To excuse Schudy from paying the fee would only discriminate in his favor because he does not choose to become a member of the Union. Under the circumstances, I find that the Union did not violate Section 8(b)(2) of the Act by seeking, in part, to have Schudy discharged because he had not paid the required reinitiation fee, and I shall recommend that this portion of the complaint be dismissed. In any event, it appears that Schudy has paid, and the Union has accepted, this fee. CONCLUSIONS OF LAW 1. Retail Store Employees Local 322, chartered by Re- tail Clerks International Association, herein Respondent Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act, and Jack Gray and Glen Conyers are agents of Respondent Union within the meaning of Sec- tions 2(13) and 8(b) of the Act. 2. Roswil, Inc., d/b/a Ramey Supermarkets, herein Ra- mey, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 19 Although the complaint alleges that all the Respondents violated the Act by this conduct, General Counsel in his brief limits this to "the Local Union," and it will be so considered herein Therefore, it will be recom- mended that the complaint be dismissed insofar as it alleges that the Inter- national or Conyers violated the Act by attempting to have Schudy dis- charged. I shall treat with Gray's responsibility hereinafter. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The following each constitute units appropriate for collective bargaining within the meaning of Section 9(b) of the Act: (a) All employees employed by Ramey in its estab- lishment located within the city limits of Seymour, Missou- ri, with the exclusions set forth below. (b) All employees employed by Ramey in its estab- lishment located within the city limits of Republic, Missou- ri, with the exclusions set forth-below. (c) All employees employed by Ramey in its estab- lishments located within the city limits of Cassville and Aurora, Missouri, with the exclusions set forth below. The exclusions are: one store manager in each store and one assistant store manager in each store, employees whose work is exclusively and wholly performed within a single and separate meat department, employees whose work is exclusively and wholly performed within a single and sepa- rate bakery department, general office employees, main warehouse employees, truckdrivers, night watchmen, jani- tors, and all other supervisory employees as defined in the Act. 4. At all times material, the Respondent Union has been and continues to be the exclusive representative for the purpose of collective bargaining of all of the employees in each of the units set forth above by virtue of Section 9(a) of the Act. 5. Respondent Union and Jack Gray, its agent, each, by refusing to bargain in good faith with Donald W. Jones, Ramey's designated representative and agent , as found hereinabove, engaged in unfair labor practices in violation of Section 8(b)(3) of the Act. 6. Respondent Union and Jack Gray and Glen Conyers, agents of Respondent Union, each, by instituting charges and disciplinary proceedings and fining John F. Swinney, James Michael Schudy, David R. Stocker, David ,Clark, Randall D. Allen, Robert Boyer, Sondra Soutee , DyAnna Short, Lyndle Dorrell, and Blake Simmons, because said employees crossed Respondent Union's picket line and worked for Ramey, after resigning from membership in Respondent Union, engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act. 7. Respondent Union and Jack Gray, its agent, each by threatening James Michael Schudy with discharge if he did not pay a strike assessment to Respondent Union engaged in unfair labor practices in violation of Section 8(b)(1)(At), and by attempting to cause Ramey to discharge Schudy for the reason aforesaid, 'engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2). 8. Except as found hereinabove, Respondent Union, Jack Gray, Glen Conyers , and Retail Clerks International Association have not engaged in unfair labor practices al- leged in the complaint. 9. The aforesaid unfair labor practices, and each of them, affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that the Respondent Union, and its agents, Jack Gray and Glen Conyers, have engaged in cer- tain unfair labor practices in violation of the Act, it will be recommended that Respondent Union and its said agents cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the purposes of the Act. Be- cause of the significant involvement of Jack Gray in the unfair labor practices committed by Respondent Union, it will be recommended that he be ordered to sign the notice to be posted by the Respondent Union, as its representa- tive. See, e.g., Teamsters Local 695 and its Agents James Marketti, Humberto Garcia, (Wisconsin Supply Corporation), 204 NLRB 866 (1973)_} Upon the basis of the record in this matter, and the above findings of fact and conclusions of law, I issue the following recommended: ORDER 20 Respondent Union, Retail Store Employees Local 322, chartered by Retail Clerks International Association, its officers, agents, and representatives, including Jack Gray and Glen Conyers, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with Donald W. Jones as the agent and representative of Ramey with re- spect to the terms and conditions of employment of em- ployees of Ramey in a bargaining unit represented by Re- spondent Union. (b) Instituting charges, conducting disciplinary, proceed- ings, or imposing or collecting fines against the 10 employ- ees named in paragraph 6 of the Conclusions of Law here- inabove, or others similarly situated, because such employees have crossed a picket line of Respondent Union, or have worked behind such picket line, subsequent to their resignation from the Union. (c) Threatening to cause any employee to be discharged or otherwise discriminated against, or attempting to cause Ramey to discharge or otherwise discriminate against any employee, because such employee fails or refuses to pay strike or other assessments to the Respondent Union. (d) In any like or related manner restraining or coercing any employee in the exercise of rights guaranteed by the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a), Upon request, bargain, collectively in good faith with the designated representatives and agents of Ramey, in- cluding Donald W. Jones, with respect to the terms and conditions of employment of employees of Ramey in an appropriate unit represented by Respondent Union for the purpose of collective bargaining. (b) Rescind the fines imposed upon the 10 employees named in paragraph 6 of the Conclusions of Law herein- 20 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. RETAIL CLERKS INTL. ASSN., LOCAL 322 above, desist from any attempt to collect such fines, ex- punge from the records of Respondent Union reference to the charges, disciplinary proceedings and penalties im- posed upon the 10 employees because they crossed Re- spondent Union's picket line and worked for Ramey in June 1974, and notify each of the 10 employees, in writing, within 10 days after the date of this Order, of Respondent Union's actions carrying out the terms of this Order. (c) Reimburse James Michael Schudy for the strike as- sessment which he paid in response to Respondent Union's demand. (d) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 21 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by Respondent Union's representative, Jack Gray, shall be posted by Re- spondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be tak- en by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (e) Furnish the Regional Director for Region 17 signed copies of the aforesaid notice for posting by Ramey, if will- ing, at places where it customarily posts notices to its em- ployees. (f) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it here- by is, dismissed insofar as it alleges unfair labor practices not found herein. 21 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United Stated Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX 93 NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT institute or conduct disciplinary pro- ceedings against members or others, or impose fines upon them because they have crossed a union picket line, or worked behind a picket line, after they have resigned from membership in our union. WE WILL NOT threaten to have any member or others discharged or otherwise harmed in employment be- cause they refuse to pay a strike assessment or any other assessment to the Union. WE WILL NOT attempt to cause Ramey Supermarkets to discharge or otherwise discriminate against any em- ployee because the employee does not pay a strike assessment or any other assessment to the Union. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights un- der the National Labor Relations Act. WE WILL, upon request, bargain collectively in good faith with the designated representatives and agents of Ramey Supermarkets, including Donald W. Jones, for the terms and conditions of employment of the Ramey employees that we represent. WE WILL rescind the fines imposed upon John F. Swinney, James Michael Schudy, David R. Stocker, David Clark, Randall D. Allen, Robert Boyer, Sondra Soutee, DyAnna Short, Lyndle Darrell and Blake Sim- mons because they crossed the picket line of the Union and worked in June 1974, after they had re- signed from membership in the Union, and expunge from the union records any reference to the discipli- nary proceedings against them for crossing the picket line and working at, that time. WE WILL reimburse James Michael Schudy for the strike assessment which he paid in response to the union's demand. RETAIL CLERKS INTERNATIONAL ASSOCIATION, AND RETAIL STORE EMPLOYEES LOCAL 322