Miscellaneous Drivers and Helpers, Local Union No. 610, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Browning-Ferris Industries)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miscellaneous Drivers and Helpers, Local Union No. 610, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Browning-Ferris In- dustries) and Albert Stevener and Ferdinand Trost. Cases 14-CB-4021 and 14-CB-4121 September 30, 1982 DECISION AND ORDER On January 8, 1980, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Charging Parties, and the Respondent filed ex- ceptions and supporting briefs; the International Brotherhood and Teamsters, Chauffeurs, Warehou- semen and Helpers of America filed a brief. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions' of the Administrative Law Judge and to adopt her recommended Order. 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, Miscellaneous Drivers and Helpers, Local Union No. 610, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. I The International Union intervened in this proceeding for the limited purpose of addressing the facial validity of the resignation provision in the International Constitution should the Board conclude that it is in issue. As urged by the International union, and as found by the Adminis- trative Law Judge, we conclude that it is unnecessary to pass upon that point. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: These consolidated cases were heard in St. Louis, Mis- souri, on December 14 and 15, 1978, pursuant to charges filed on May 15 and August 4, 1978, and a consolidated complaint issued on October 30, 1978. The issue present- ed is whether Respondent Miscellaneous Drivers and Helpers, Local Union No. 610, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen and Helpers of America (the Union or the Local), violated Section 8(b)(1)(A) of the National Labor Rela- tions Act, as amended (the Act), when intraunion charges were preferred, processed, and partly sustained against certain employees of Browning-Ferris Industries 264 NLRB No. 121 (the Company), in connection with activities during a strike by the Union against the Company. After considering the entire record, including the de- meanor of the witnesses, and the briefs filed by the Union, the Charging Parties, and counsel for the General Counsel (the General Counsel), I hereby make the fol- lowing: FINDINGS OF FACT 1. JURISDICTION The Company, a Delaware corporation, maintains its office and place of business in St. Louis, Missouri, where it is engaged in the hauling and removal of waste materi- als and trash for commercial customers. During the cal- endar year 1977, a representative period, the Company performed services valued in excess of $50,000 in, and for various enterprises located in, States other than Mis- souri. I find that, as the Union concedes, the Company is engaged in commerce within the meaning of the Act, and that assertion of jurisdiction over this case will effec- tuate the policies of the Act. The Union is a labor organization within the meaning of the Act. II. TIHH Atl Fi GtD UNF AIR L ABOR PRACTICES A. Background A collective-bargaining agreement between the Union and the Company, which agreement covered approxi- mately 50 employees in the Company's northern facility, expired on March 31, 1978.1 The parties were unable to reach agreement on a new contract. On April 4, the Union began a lawful economic strike at the northern fa- cility, in an effort to induce the Company to make a more favorable contract offer. In connection with the strike, which lasted until about early November, the Union set up a picket line which was manned by the Company's striking employees. B. Admittedly Preresignation Conduct Which Allegedly Led to Intraunion Disciplinary Proceedings 1. April 6 conduct: James Caldwell, Ricky Dalton, and Ralph Gregory Hueffmeier Among the members who picketed on April 6 were James Caldwell, Ricky Dalton, and Ralph Gregory Hueffmeier. Some of the other pickets angrily remarked to fellow pickets that they could not make any money under the Company's proposed contract; Dalton ex- pressed disagreement. Hueffmeier said that he thought the employees should accept the Company's proposed contract because he and "most everybody could make money"; some of the older pickets replied that they did not think they could because they could not work as fast as younger employees. Hueffmeier said that he thought the contract had not been explained to him right by the business agent and the picket captains. Caldwell told his fellow pickets, "Some things would be better than stand- All dates hereafter are 1978 unless otherwise specified. 886 MISCELLANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610 ing out here on this line." The foregoing remarks aside, neither Hueffmeier, Caldwell, nor Dalton tried to talk other members into crossing the picket line:;2 nor, so far as the record shows, did any of the other pickets. Line Manager James Cosmann, a member of management, was present during the first part of the pickets' discussion, but not during Hueffmeier's remarks about the contract. The record fails to show which, if any, of Dalton's or Caldwell's remarks were overheard by Cosmann. Under the constitution of the Local's parent Interna- tional, a member's intraunion charges against a fellow member of the same local are to be filed with the secre- tary-treasurer of the local. After the picket line incident discussed above, someone whose identity is not shown by the record prepared a typewritten letter, dated April 7 and addressed to Secretary-Treasurer Harland Horn, which alleged that on April 6 Caldwell, Dalton, and Hueffmeier "tried to talk other members into crossing our picket line . . . and going to work." They also abused other members orally. The document further al- leged that such conduct violated various specified provi- sions, discussed infra, of the Local bylaws and the Inter- national constitution. The document contains 14 signa- tures. Among the signers were picket captain/negotiating committeeman Ralph Hatchet, who was present during part of this incident, and at least five more employees who were present.3 The document was also signed by picket captain/negotiating committeeman/steward Arnold Brown, who also tried to induce others to sign; the record fails to show whether he or all those whom he solicited to sign had been present during the incident purportedly described in the document. The document was signed by at least one employee who had not been present-namely, Richard Crenshaw, Sr. Crenshaw, who cannot read very well, credibly testified that, when the document was handed to him, picket captain/negotiating committeeman/chief steward Lee Grinston said that Union President John Metz "said that I should sign that, so i signed it." 4 Grinston was present during this inci- dent, but did not sign the charges. 2. April 25 conduct (Herman Hueffmeier); conduct about April 25 (Albert Stevener); conduct about April 28 (Ferdinand Trost) On the night of April 25, Herman Hueffmeier, Albert Stevener, and Gerald Lemp were the pickets. Hueffmeier asked Lemp, "Do you ever think we're going to get back to work?" Lemp said yes, but in the future, Hueff- meier said that the Company was advertising for new drivers, that new drivers would improve with experi- ence, and that, once the Company hired new drivers, it might not want the strikers back at all. Lemp said that he thought the strikers had ways of getting back. Hueff- s This finding is based on their testimony and on the testimony of em- ployee James William Thomas. For demeanor reasons, to the extent in- consistent with their testimony I do not accept picket captain Ralph Hatchet's testimony that Hueffmeier talked to him about "getting the guys to go back to work." s Elbia Coffman, Jerry Loveless, Els in Loveless, Nathanial Phillips, and James Williams. Another signer, Fischer, may also have been present. 4 This finding is based on the testimony of Crenshaw. Sr. For demea- nor reasons, I do not accept Grinston's denial of the remark about Metz. meier expressed doubt about this, said that he had a wife and three children, and further said that he did not want to get into trouble with the police and be sent to jail. Lemp said that picket captain/negotiating committee- man/steward Roland Smith was going to help the strik- ers out quite a bit. Hueffmeier said that, during the first couple of days on the picket line, Smith had urged Hueffmeier to cross the picket line, and that they had had an open argument about the matter. Hueffmeier fur- ther said that Lemp should not trust Smith because Smith stole things. 5 At or about this point, Supervisor Gene East, who was driving into the plant, stopped his car near the picket line at a point visible to the pickets, rolled down his window, and listened. Hueffmeier said that he believed in the Union, but that Union President Metz had failed to keep his promises about publicizing the strike, keeping the trucks from going out, and chas- ing out the "scabs." Hueffmeier further said, "What are we supposed to do? Just sit here and watch everybody come and take our jobs?" Hueffmeier also expressed the desire for a union vote to return to work as union men. Lemp, who had been drinking, became angry and left. About that same day, Supervisor East stopped by the picket line at a point where employee Albert Stevener was picketing. East gave Stevener some doughnuts, and picket Lemp came over to get one. East asked, "When are you boys going back to work?" Stevener told Lemp that the strikers ought to accept the Company's contract offer and go back to work. Lemp disagreed.6 Employee Ferdinand Trost credibly testified without contradiction to the following effect: About April 28, Trost invited picket captain/negotiating committeeman Ralph Hatchet into Trost's car. While they were sitting there, Trost asked what would happen to some of the long-service employees' retirement if they lost their jobs because of the strike. Hatchet said that he did not know. and would check into the matter. Trost said that he thought the Company had given its last offer, and that Hatchet was a trusted leader who could change many employees' opinion of that offer if he thought it was a good one. Trost went on to say that a vote during the strike on the Company's most recent offer should have been by secret ballot rather than by a show of hands, and showed him the International constitution. Hatchet replied, "It's in there but there's some way, some loop- hole that John Metz got by with." Picket captain/negotiating committeeman/chief stew- ard Grinston, who was not present during this conversa- tion, testified in substance to a suspicion, whose accuracy he admittedly did not know, that the Company had in- duced Trost to make these remarks to Hatchet. The record contains no evidence about why Trost made these 5 Smith did not testify, and the accuracy of these allegations about his conduct is undenied. My finding that the remarks about Smith were made by Hueffmeier and not by Stevener is based on Hueffmcier's and Ste- vener's testimony. For demeanor reasons, I do not accept Gnnston's tes- timony attributing these remarks to Stevener. I My findings in this paragraph are based on Stevener's testimony and credible portions of the testimony of picket captain/negotiating committeeman/chief steward Grinston, who overheard the conversation For demeanor reasons, I accept Stevener's testimony about his own re- marks, and reject Grinston's version 887 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remarks. Thereafter, Grinston telephoned Metz that some of the people "were saying bad things and that about the Union, some of the other people there, stew- ards and our negotiating committee people." Grinston asked Metz what could be done about it. Metz said that charges could be filed against them if their conduct vio- lated the Union's bylaws. A day or so later, Grinston went down to the union hall and asked Metz to point out the provisions in the bylaws regarding where and how to file charges. Metz did so. After this conference, the following document was given to the Union: April 29, 1978 Dear Mr. Horn, I would like to press charges on the following members: 1) Herman Huffmier [sic] 2) Albert Stevener 3) Ferd Trost on these following charges Article XXI, Section 1, b, d, f, 1, 0 names one & two was talking to the formen [sic] for a period of time they were bad mouthing one of bargain [sic] unit captains they were saying: That the captain was a thief and other words on Tuesday April 25, of 1978. And one & two said they would go back to work without a increase [?]. The third man has been calling up one of the men on the committee telling him that was the com- pany's final offer. And wanting him to change other mens [sic] mind [sic] about the votes and other words. On April 28, of 1978. Sincerly [sic] Shop Steward Grinston testified that this document was handprinted by him, and there is no positive evidence otherwise. On the witness stand, he evinced inability to read the partic- ular portions of the provisions in the Union's bylaws which are specified in this document. He testified that Metz did not pick out these sections for him or tell him what to put in the charge, that Grinston "could have picked it up from some of the other guys," that he went through these sections with picket captain/negotiating committeeman Ralph Hatchet and picket captain/ne- gotiating committeeman/steward Arnold Brown, and that Grinston's daughter, a senior in high school, read these sections to him. This document was signed by Grinston, Ralph Hatchet, and Lemp. Grinston testified that he believed that he prepared the document while sit- ting in his truck; that thereafter Ralph Hatchet came up, saw it, and said he would sign it; and that Lemp was there. Lemp did not testify, and Ralph Hatchet was not asked about this specific incident. C. Disciplinary Proceedings 1. Background Article II, section 2(h), of the constitution of the Local's parent International has at all relevant times pro- vided: No member may resign from his membership in the International Union or any subordinate body before he has paid all dues, assessments, fines and other obligations owing to the International Union and all its subordinate bodies. A resignation must be in writing to the Secretary-Treasurer of the Local Union. After the Secretary-Treasurer has deter- mined that the foregoing requirements have been complied with, such resignation shall then be effec- tive thirty (30) days after its receipt by the Secre- tary-Treasurer. At all relevant times, article X, section 5 (c), of the In- ternational constitution has provided: All members paying dues to Local Unions must pay them on or before the last business day of the current month. Any member failing to pay his dues at such time shall not be in good standing for such month but may restore such good standing for such month for the purpose of attending meetings, nomi- nating, voting and participating in affairs of the Local Union by the payment of his delinquent dues prior to said meeting .... Any member who shall be three (3) months in arrears in the payment of dues [or] fines . . . shall automatically stand sus- pended at the end of the third (3rd) month, and shall not be entitled to any rights or privileges of membership .... Any member who has been auto- matically suspended for failure to pay dues shall be under a continuing obligation to pay dues during the period of his suspension. The Local's bylaws effective prior to April 10, 1978, contained no provisions regarding resignation; since that date, the bylaws have contained a provision (art. IV, sec. 4) substantially the same as that set forth in the Interna- tional constitution. At all relevant times, the Local bylaws have contained substantially the same provisions regarding dues payment (art. XVI, sec. 2) as the above- quoted provisions of the International constitution except for the last-quoted sentence, and also a provision (art. XX, sec. 10) adopting the International constitution and stating that it supersedes the bylaws wherever there are inconsistencies between the two. The International con- stitution calls for strike benefits to "all members not in arrears for dues in excess of one month" (art. XII, sec. 4). At all relevant times, the Local bylaws (art. XVI, sec. 7) have provided, "Any member who shall owe fines, as- sessments or other charges, who has not paid such charges on or before the first business day of the month following the assessment of such charges . . . shall not be entitled to any rights or privileges as a member of the Local Union or the International Union, which shall in- clude strike benefit payments." Both the International 888 MISCELLANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610 constitution (art. X, sec. 3) and the Local bylaws (art. XVI, sec. 2) base dues on the member's hourly pay rate, with an $11 monthly minimum prescribed by the Interna- tional constitution. Aside from these provisions and the provision summarized infra, fn. 32, neither document contains any specific provision regarding payment of dues during a strike. The Local conducts membership meetings every month except for July, August, and December. At least before the strike began, notices of these meetings were posted on the Local's bulletin board at the Company's establishment. At these meetings, copies of the Interna- tional's constitution were laid on the table. In addition, Local President Metz gave copies of the International constitution to at least some of the stewards. Also laid on the table, and furnished to at least some of the stewards, were copies of the Local's bylaws. Until an undisclosed date after May 24, 1978, these copies were of the bylaws effective before April 10, 1978. On February 5, 1978, the Local conducted a meeting at which those present voted 33 to 2 in favor of applying for strike sanction. At a union meeting conducted on April 4, those present voted 34 to 16 in favor of a strike. As related infra, a number of the employees named in the complaint attended one or both of these meetings. During the strike, striking members who performed their assigned picket duty were paid strike benefits fi- nanced by both the Local and the International. More than half of the amounts paid came from the Local's treasury. Yvonne Pruett, a clerical employee of the Local for 8 years, testified that the monthly dues for strikers had always been $12, but that so far as she knew this had never been put into writing. At the April 4 meeting, Metz stated to the members present that during the strike their monthly dues would be $12 rather than the regular rates, which varied between $17 and $20, but that they would have to keep their dues up to date in order to receive strike benefits. Members usually collect- ed their strike benefits between 10 a.m. and noon every Monday. While picking up their strike benefits, some members asked whether they had to pay dues or com- plained about having to pay them. Metz replied that, if they did not maintain their dues, the International would end up by cutting off its share of their strike benefits. My finding that Metz made these statements about the continuing obligation to pay dues is based on the testimo- ny of Union President Metz, chief steward Grinston, claimants James William Thomas and James Williams, and union members Willie Brown, Peter Brown, Walter Wilkey, Henry Robinson, Elbia Coffman, and Ralph Hatchet. As set forth infra, a number of the employees, including employees who attended the April 4 meeting, denied hearing such statements. I believe that such de- nials were not deliberately untruthful, but were due to such factors as inattention, failure of recollection, honest mistake, or a fortuitous failure to be present when any of these statements were made. The bargaining agreement which expired on March 31, 1978, contained union-shop and checkoff clauses. All the employees named in the complaint had signed checkoff authorizations. As required by the bargaining agreement, the Company checked off each month the dues for the following month. The Company checked off dues in March 1978 for the month of April 1978, but did not remit them to the Local until September 1978. Article XXII, section 4(a), of the International's provides, "No member whose dues have been withheld by his employer for payment to the Local Union pursuant to his volun- tary authorization provided for in a collective-bargaining agreement shall be declared ineligible to stand for elec- tion, to nominate, second, or vote for a candidate for office in the Local Union, by reason of a delay or default in the payment of dues by the employer to the Local Union." Article XV, section 9, of the Local's bylaws states that no person not in good standing can vote in elections for local office, but "dues checked off or to be checked off by an employer shall not be considered a delay or default of the member." In late May, Union President Metz told then member Jerry Loveless, who had just been given a receipt specifying April dues and had been told by a clerical employee of the Union that Loveless still owed dues for May, not to worry about April dues, that getting those dues from the Company was the Union's responsibility. On May 1, a clerical em- ployee of the Union told then member Kenneth Smith that at that time only I month's dues were due from him, although he offered to pay 2 months' dues if they were due and, as previously noted, dues are due during the month for which they are paid. Employee Albert Ziegel- meyer credibly testified that, on two different occasions, one of the Union's secretaries said that the members would not have to pay for April because the Company owed that payment, although the members would have to pay for subsequent months. 7 The union cashier to whom then member James Williams made his only dues payment during the strike told him that this payment, made on May 5, was for the month of May. Pruett, a clerical employee of the Union, testified that, although she sometimes attempts to collect dues directly from a dues-delinquent employee who is on checkoff but whose dues have not been included in the checked-off dues re- mitted by his employer,S she never makes such an at- tempt where the employer is bound by a checkoff clause but has failed to remit any dues whatever. I conclude that all the employees named in the complaint were paid up in their dues through at least April 1978.9 However, because of limitations built into the computer system which the Union uses to keep its financial records, dues payments made after the Company's remission of dues checked off in February 1978 for March 1978 were at- tributed in the Union's records to the most recent month for which the Union had failed to receive dues. For ex- ample, an employee who had been on checkoff and who made his first direct dues payment in May 1978 would I Ziegelmeyer was not asked the identity of this secretary. Union Sec- retary Pruett testified that she would not have told anyone this. Other clerical employees of the Union also received dues payments, but in any event, I regard Ziegelmeyer as a more trustworthy witness than Pruett. 8 She explained that, under such circumstances, the employee's dues might not have been checked off at all because, for example, he was on vacation 9 A possible exception is Thomas, who was on withdrawal status during an undisclosed period which probably included February. My dis- position of this case makes his possible dues delinquency irrelevant. 889 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereupon be listed in the Union's records as having paid dues for April but not May and would be given a receipt specifying April dues. Moreover, because dues are due before the end of the month for which they are paid, the Union's records would show this employee to be delin- quent in his dues at all times between May 1 and the September 13 posting of the dues checked off in March, even if at monthly intervals he made four more dues payments during this period. Metz testified that dues for a particular month are due during that month and, if not paid by the end of the month, would be considered delinquent. Metz further testified that an employee must be paid up for the month he requests a withdrawal card. Article XVIII, section 5(e), of the International's constitution provides that a member must pay his dues through the month in which a withdrawal card is effective. Pruett testified that, if a man comes in on the first of the month and pays due for the previous month, he is delinquent for a month. In view of Metz' and Pruett's testimony in this connection and the provisions in the bylaws of the Union and its parent International, I conclude that as of the date the Union received the resignation of a member, that member was paid up in his dues if, but only if, he had paid dues for the month during which the resignation was received. 2. Disciplining of employees not charged with admittedly preresignation conduct a. The Gazzoli letter On May 5, then member Ralph Gregory Hueffmeier received through the mail, together with a copy of the April 7 intraunion charges based on his alleged April 6 picket line conduct (supra, sec. II,B,I), a copy of the In- ternational constitution, which he gave to then member Ferdinand Trost. On May 8, Trost and then member Albert Stevener received copies of the April 29 intraun- ion charges filed against them (supra, sec. II,B,2). On May 10, Trost, Stevener, and perhaps Hueffmeier met with attorney John J. Gazzoli, Jr., to whom Trost gave Hueffmeier's copy of the constitution. About May 15, Gazzoli drafted the following resignation letter: Mr. Harland Horn Secretary-Treasurer Local 610, Teamsters 300 So. Grand St. Louis, Missouri 63103 Dear Sir: The undersigned hereby resign from membership in Local 610, Miscellaneous Drivers & Helpers Union, pursuant to Article II, Section 2(h) of the International Constitution. All dues, assessments, fines, and other obligations have been paid. b. Circumstances surrounding purported resignation of each employee (1) Earl Alexander Earl Alexander, a member for about 5 years, did not attend the February 5 meeting, but did attend the meet- ings on April 4, 12, and 24. He heard from "some of the guys" that dues had to be paid during the strike. He paid 1 month's dues on May 15 and, that same day, picked up his strike benefits. Although aware of the regular month- ly meetings, he attended only one of them. On May 26, he signed two typewritten copies of the Gazzoli resigna- tion letter. Although the record fails directly to show how Alexander obtained these letters, I infer that Alex- ander obtained them either from Gazzoli or from the Company, which gave blank copies to other employees (see infra). Alexander gave one copy to employee Bob Beck, whom Alexander testimonially identified as a "strike captain" but not a "picket captain . . .just a picket," and one copy to Alexander's foreman, who said that he would mail it to the Union. On May 26, the latter was mailed to Horn by registered mail at the Company's expense. Alexander returned to work that same day. He credibly testified that no union officer had ever told him the procedure for resigning from the Union, and that he had never seen any documentation which indicated how to resign. (2) Kerry Bahr Kerry Bahr joined the Union in 1975. He attended the meetings on February 5 and April 4 and 24, but not on April 12. He testified that no union officer spoke to him about paying dues during the strike, but that a fellow employee told him that he had until the end of the month to pay them. During the strike, he paid no dues. About May 15, attorney Gazzoli gave to employee Ferdinand Trost two copies of the resignation letter which Gazzoli had drafted at the request of Stevener and Trost. Also about May 15, Bahr asked Manager Jim Cos- mann how to resign from the Union. He told Bahr that "two guys" were meeting at the Ramada Inn on May 16. On that date, May 16, Bahr proceeded to the Ramada Inn parking lot. Gathered there were Richard Crenshaw, Sr., Stevener, James William Thomas, and Ferdinand Trost. All five of these employee signed two copies of the Gazzoli resignation letter.10 Then, these employees, two supervisors, and Line Manager Cosmann drove to the picket line. Trost got out of Cosmann's car and gave picket captain/negotiating committeeman/chief steward Grinston one copy of the letter in an envelope with his name on it. Grinston said, "O.K." Picket captain/ne- gotiating committeeman/steward Roland Smith, who was on the picket line, said, "Good, I'm glad to see that." Then, all five employees drove through the picket line and went to work. On May 17, the other copy of O1 In view of the testimony of the other four employees who were present, and the testimony of Thomas and others about the events later that morning, I believe employee Thomas was mistaken in testifying that he signed only one copy, and that he signed it on May 15, a Monday. 890 MISCELI ANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610 the resignation letter was mailed to Horn by the Compa- ny at its own expense. Bahr credibly testified that no union officer had ever explained to him the proper procedure in resigning from the Union. He was aware that the Union held regular meetings from time to time, but never attended any (3) Steven Bergman Steven Bergman, a member for about 5 years. attended the meetings on February 5 and April 4, 12, and 24. He testified that nobody ever informed him that he had to pay dues while on strike, and he did not pay them. He walked picket, and 80 percent of the time personally picked up at the union hall all the money due him. On July 11, he signed a Gazzoli typewritten resignation letter given him by Company Foreman Gene East. Berg- man gave the signed letter to Harry Richardson. a picket who was on the picket line, and then returned to work. East told Bergman that an unsigned carbon copy would be sent to the Union by registered mail On July 17, such a copy was sent to Horn by registered mail at the Com- pany's expense. The copy signed by Bergman does not otherwise include his name, but by letter dated July 19 the Union acknowledged receiving a purported resigna- tion from him. Bergman credibly testified that no union officer ever informed him of the procedure for resigning from the Union, and that he had never seen any docu- mentation on such a procedure. (4) Richard Crenshaw, Jr. Richard Crenshaw, Jr., a member for about 6 months, attended the meetings on February 5 and April 4, 12, and 24. lIe paid no dues during the strike. He testified that he understood from his fellow pickets that the strik- ers did not have to pay dues until they went back to work, but never checked this with any of the union offi- cers. He went to the union hall and collected strike bene- fits every week until his purported resignation. He knew that the Union had monthly meetings. but did not attend. He did not know until after crossing the picket line that the Union had a constitution and bylaws. Crenshaw, Jr., was in the hospital when the first Gaz- zoli resignation letter was signed on May 16 by Bahr and others. At his son's request, his father signed the letter on Crenshaw, Jr.'s behalf. A few days later, Crenshaw, Jr., returned to work. (5) Richard Crenshaw, Sr. Richard Crenshaw, Sr., a member for 17 years, did not pay dues during the strike. He attended the meetings on February 5 and April 4, 12, and 24. He testified that nobody ever told him that he had to pay dues during the strike. He never asked any union officer if he had to pay dues while on strike. He received strike benefits which his son, striker Richard Crenshaw, Jr., picked up for him at the union hall. On May 16, he signed the first Gazzoli resignation letter also signed by Bahr and others, and re- turned to work with them. As previously noted, one copy of this letter was given to picket captain/ne- gotiating committeeman chief steward Grinston on May 16, and the other was mailed to Horn on May 17. Crenshaw, Sr., attended most regular union meetings. No union officer ever told him the procedure for resign- ing from the Union, and he never asked. Crenshaw, Sr., cannot read very well. He testified that he never saw any type of documents which indicated the procedure for resigning from the Union. (6) Jessie Hatchet Jessie Hatchet, a member for 17 years, did not pay dues during the strike. He attended the meetings on April 4, 12, and 24, but not the February 5 meeting. He testified that no union official discussed the payment of dues while he was on strike. I He attended union meet- ings for a while after joining, but discontinued doing so. No union official ever explained to him how to resign from a union. Jessie Hatchet is unable to read. This is known by his son Ralph Hatchet, who was a picket cap- tain and a member of the negotiating committee. Ralph Hatchet aside, there is no evidence as to whether Jessie Hatchet's illiteracy was known to any union official. On or before May 23, Foreman East gave Hatchet a Gazzoli typewritten resignation letter, and told Hatchet that when he signed this document he was resigning from the Union. East told Hatchet that East would mail the document. The document was mailed to Horn by registered mail, at company expense, on May 23. Hatchet returned to work the same day that he signed the docu- ment. (7) Jerry Loveless Jerry Loveless, a member for about 8 years, paid I month's dues on May 22, and another month's dues on June 22. He attended the April 4 and 24 meetings, but not the meetings on February 5 and April 12. On June 26, Loveless signed two copies of a Gazzoli typewritten resignation letter; gave one copy to the Company; gave one copy to picket Larry McGeorge; and crossed the line. That same day, the Company sent this letter to Horn by registered mail and at company expense. (8) Nathanial Phillips Nathanial Phillips, a member for about 11 years, paid I month's dues on May 15. On May 30, when he went to the Company's office to pick up his vacation pay, Line Manager Cosmann and Foreman East asked him about coming back to work. Phillips said that he would want to resign before coming back to work. Cosmann and East said that he could, and gave him a Gazzoli type- written resignation letter. Phillips signed two copies, one of which East retained and one of which he and Phillips gave to either picket captain/negotiating committee- man/chief steward Grinston or picket captain/ne- gotiating committeeman/steward Arnold Brown. Then, Phillips crossed the picket line and began to work. On June 1. the Company at its own expense sent Phillips' letter to Horn by registered mail. II After Jessie Hatchet signed his resignation letter, he "as told by his son Ralph. who %as a picket captain and a member of the negotiating committee, that members were supposed to pay dues during the strike. 89t DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phillips attended some regular union meetings. Nobody ever told him about the procedure to resign from the Union, or showed him any documents explain- ing such a procedure. Phillips attended the meetings on February 5 and April 4, 12, and 24. He testified that no union officer ever told him that he would need to pay dues while out on strike, but that Kenneth Smith told him on or a few days before May 15 that Metz had so stated. Phillips picked up his strike benefits at the union hall. (9) Kenneth Smith Kenneth Smith, a member for 7 years, attended the April 4, 12, and 24 meetings, but not the February 5 meeting. On May 1, he paid I month's dues. The em- ployee of the Union who accepted this payment told him that this was all he owed. On May 15, he wrote, and mailed to the Union by certified mail, a card stating, "I Kenneth R. Smith, Jr., resign from Teamsters Local 610 on May 15, 1978." That same day, he crossed the picket line and went to work. No union officer had ever told Smith the procedure for resigning, and he never saw any such procedure in writing. (10) James William Thomas James William (Bill) Thomas attended the meetings on February 5 and April 4 and 12, but not the meeting on April 24. He paid no dues after the strike began. In early May, Union President John Metz said that the employees had to pay dues while on strike, but not right away, that "it could go for another month anyway." On May 16, Thomas signed the first Gazzoli resignation letter, and returned to work, with Bahr and others. As previously noted, one copy of this letter was given to picket captain/negotiating committeeman/chief steward Grin- ston on May 16, and the other was mailed to Horn on May 17. Thomas had been a member for about 2 years, but had been on withdrawal status earlier in 1978 (see supra, fn. 9). (11) Terence Trost Terence Trost paid no dues during the strike. He at- tended the April 4 and 12 meetings, but not the meetings on February 5 or April 24. He went to union meetings when asked to go by the shop steward or the picket cap- tain. He heard discussions on the picket line about whether dues had to be paid during the strike, but nobody knew, and he never asked the Union about the matter. He collected strike benefits for all the times he walked the picket line except the last day. Trost told Foreman East that Trost wanted to resign and did not know what to write down. East gave him two copies of what East described as a copy of what "the secretaries had already written up." These docu- ments were copies of the Gazzoli letter. On May 23, Trost signed both copies, gave one to picket captain/ne- gotiating committeeman Ralph Hatchet, mailed one to Horn by certified mail, and returned to work. No union official had ever discussed with Trost the proper proce- dure to resign from the Union, and he had never seen any documents telling him how to resign. (12) James Wieberg James Wieberg, a member for 8 years, attended the April 4 and 12 meetings, but not the February 5 or April 24 meetings. He paid no dues during the strike. He testi- fied that nobody informed him that he needed to pay dues while on strike. He never asked any union official whether he needed to pay them. No union officer ever told him the procedure for resigning from the Union, he never saw any documents telling him how to resign, and he never asked any union officer how to resign. He ob- tained strike benefits at the union hall. On May 17, he signed two copies of a typewritten Gazzoli resignation letter and tried to give a copy on the picket line to picket captain/negotiating committeeman/chief steward Grinston, who refused to accept it. Then, that same morning, Wieberg returned to work. Wieberg mailed a copy of this letter to Horn on May 17, in an envelope postmarked May 18. (13) James Williams James Williams, a member for 17 years, attended the meetings on February 5 and April 4, 12, and 24. He paid I month's dues during the strike, on May 15. He testified that he did not remember being told by Metz, when the strike vote was taken, that dues had to be paid during the strike. However, Metz did so advise him when he picked up his strike benefits. On May 26, Williams crossed the picket line. He walked in with Line Manager Cosmann, who gave him his route sheet. Then, Williams punched in. After that, the Company's "dispatch girl" gave him a typewritten Gazzoli resignation letter. Williams signed it and then started to work. That same day, the Company sent this letter at its own expense to Horn by registered mail. (14) Albert Ziegelmeyer Albert Ziegelmeyer, a member for about 6 years, at- tended the meetings on February 5 and April 4, 12, and 24. He testified that no union officer told him that he had to pay dues while on strike. He asked one of the Union's secretaries whether he had to pay, and she told him that he had to pay $12 a month. Ziegelmeyer paid 1 month's dues in May, I month's dues in June, and 2 months' dues in August. On August 15, he obtained from Foreman East, and signed, two copies of a typewritten Gazzoli resignation letter. Ziegelmeyer gave one copy to picket captain/negotiating committeeman/steward Roland Smith and the other to East, who said he would send it to the union hall. The letter was mailed at compa- ny expense to Horn by certified mail on August 17. Zie- gelmeyer returned to work on August 15. No union offi- cer ever told Ziegelmeyer about the procedure for re- signing, and he never saw the Union's bylaws. He never got paid for the last day he picketed. c. The "strikebreaker" notations After the Union had received a purported resignation letter from an employee who had thereafter returned to work, the notation "strikebreaker" was put on his dues record. Pruett, a clerical employee of the Union, testified 892 MISCELLANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610 that she inserted the "strikebreaker" notations, and that they were her own idea. Initially, she testified that she put them there in order to make sure that if the employ- ees came in for withdrawal cards she would refer them to a business representative. Later, she testified that she made these notations because only pickets were covered by insurance, and if an employee stopped picketing, the insurance company would be notified that they were no longer covered. Then, she testified that the "strikebreak- er" notation would not be made if an employee stopped picketing and went to work for an employer other than the Company. Notwithstanding the inconsistencies in her explanation for the "strikebreaker" notations, I accept her and Metz' denial that they were inserted at Metz' instructions, for demeanor reasons, because of the ring of truth in his testimony that he would have proposed the word "scab," and because the Union had other records identifying the "strikebreakers." d. The Union's responses to the purported resignations of Bergman. Crenshaw Jr., Crenshaw Sr., Jessie Hatchet, Kenneth Smith. Terence Trost, Wieberg, and Williams On May 26 or July 19, the Union forwarded to em- ployees Bergman, Crenshaw Jr., Crenshaw Sr., Jessie Hatchet, Kenneth Smith, Terence Trost, and Wieberg, letters which stated, in whole or in part: We have received a notice from you wherein you state you are resigning from [the Union]. You also stated you have paid all dues and other obligations. After checking our records, I find your statement is not true, therefore, your resignation cannot be ef- fective until all obligations are satisfied. A June 19 letter to employee Williams was substantially the same, except that it attributed to him the representa- tion that he had also paid all fines and said that his resig- nation could not be effective until all dues and fines were paid. ' 2 None of these letters said anything about the provision in the International's constitution and the Union's bylaws that a resignation is to be effective 30 days after receipt; and none of them specified the amount allegedly owed. Smith paid I month's dues in May; for the reasons stated supra, section II,C,1, I find that, as of May 26, the date of the Union's letter to him, he had paid all of his dues. For the reasons stated supra section II,C, 1I, and infra, sec- tion II,D,l,b, I find that Union Secretary-Treasurer Horn received Terence Trost's purported resignation on May 24, the day after it was mailed, and that as of that date he was a paid-up member if, but only if, he was entitled to credit for I month's dues payment in addition to the April dues checked off by the Company in March. I con- clude that he was entitled to such credit, because he failed on Monday, May 22, to collect his payment for his 12 Bergman credibly denied having read his letter, and credibly testi- fied that he could not say that he received it. The letters sent to Cren- shas Sr., and to Williams were probably receipted by their respective wives. Crenshas Sr., who cannot read very well, could not recall wheth- er the letter was read to him by anyone at his home, even after it was read to him at the heanng Williams testified that he had never seen his litter last day of picketing; the Local's payment for such pick- eting exceeded I month's dues of $12; and the setoff of dues against strike benefits is called for by article XII, section 4, of the International constitution (see infra, fn. 32).1S Williams paid I month's dues in May; for the rea- sons stated supra, section I,C, 1, and infra section II,D, l,b, I find that Union Secretary-Treasurer Horn received Williams' resignation letter on May 27, the day after it was mailed, and as of that date he had paid all his dues. e. The disciplinary proceedings against the 14 employees accused solely of crossing the picket line On various dates between May 15 and August 21, 1978, charges were preferred against each of the 14 em- ployees named supra section II,C,2,b. Each charge al- leged that the charged employee had crossed the picket line to work, and that he had thereby violated the Local's bylaws and the International constitution. The Union served on each employee copies of the charges against him and of the assertedly violated provisions of the constitution and bylaws, and advised him of the time and place of the hearing on the charges. The letters to Bergman, Phillips, and Ziegelmeyer also contained lan- guage acknowledging the receipt of their respective pur- ported resignations, and further stating that the employee had not paid all "obligations" and "therefore, your resig- nation cannot become effective until all obligations are settled." None of these 14 letters referred to the provi- sion in the International's constitution and the Union's bylaws that resignations are not effective until 30 days after receipt; nor did they specify the amounts allegedly owed. With the possible exception of Williams, none of these employees, so far as the record shows, appeared at his respective hearing. 4 On various dates between June 12 and October 26, the Union, through its executive board, issued documents headed "Judgment and Decision" against each of these 14 employees. Each of these "Judgments" imposed, in effect, a $210 fine for each day the employee had already worked behind the picket line and, beginning on the day of the "Judgment" and ending "on the date such strike and picketing shall cease or the date your resignation as a member of the Local Union becomes effective," an ad- ditional $200 for each additional day of work behind the picket line. 15 In addition, each judgment called for inter- 'I At this time, the Local was paying strike benefits of S45 or $55 a week, for which the employees were required to picket 2 or 3 days. At this time, the International was paying additional weekly benefits of S45 or S55. 14 The "Judgment and Decision" sent to Williams, which is undated and unsigned and is blank where the dates of the strike and of his resigna- tion are called for, recites that he failed to appear at his June 12 hearing Moreover, Williams testified that he never saw copies of the charges and notice of hearing, which were apparently receipted by his wife. Howev- er, the June 12 minutes of the Union's executive board recite that he ap- peared at that hearing. is Initially, the executive board had imposed on Bahr, Crenshaw Jr., Crenshaw Sr., Jessie Hatchet, Kenneth Smith, Thomas, and Wieberg a fine of $6,000 plus $200 for "each day they continue to cross the picket line, or until their resignation becomes effective." The initial decisions, on May 27 and 31 and June 7, contain the notation, "The above decision, shall be subject to review by Local 610 attorney before notification to Continued 893 DECISIONS OF NATIONAL LABOR RELATIONS BOARD est, court costs, and attorney's fees if suit were filed to collect the fines imposed. Further, each judgment averred: You have attempted to submit a resignation of your membership in this Local Union by filing with this Local Union a paper dated . . . in which you state that you are resigning from this Local Union and that all of your dues and other Union obliga- tions have been paid. However, the Executive Board has checked the financial records of this Local Union and found that you do owe it dues. Your attention is directed to Article IV, Section 4 of our Local Union By-Laws which reads: "No member may resign from this Local Union before he has paid all dues, assessments, fines and other obligations owing to the Interna- tional Union and all its subordinate bodies, in- cluding this Local Union. A resignation must be in writing to the Secretary-Treasurer of this Local Union. After the Secretary-Treasurer has determined that the foregoing requirements have been complied with, such resignation shall then be effective thirty (30) days after its receipt by the Secretary-Treasurer."''6 None of these judgments specified the amount of the dues which the employee allegedly owed to the Union. After employee Williams was advised by letter dated July 19 that he had been fined, he went to the union office and talked to Union President Metz, Union Re- cording Secretary Boyer, and others. They asked why he had crossed the picket line, and he replied that he had to make a living. They told him that he could not resign be- cause he was not paid up. He asked what month he owed for. They checked the records and found that he did not owe any dues. They then said, "We'll think about it," and walked out the door. The Union's minutes of hearings which led to these fines were offered into evidence by the Union to show what in fact happened at these hearings, and were re- ceived for that purpose. There are unexplained discrep- ancies between these minutes and some of the judgments. Thus, the June 7 and 12 minutes state that Grinston was the only witness against Alexander and Jessie Hatchet, and so imply as to Williams, but the judgments against all three recite that testimony against them was given by Ralph Hatchet (Jessie Hatchet's son), Roland Smith, and Grinston. 7 The May 31 minutes state that Grinston was the only witness against Thomas and Wieberg, but the judgments recite that testimony against them was given by Grinston, Arnold Brown, and Ralph Hatchet.'8 The parties." Like action was taken as to Herman Hueffmeier, Ralph Gregory Hueffmeier, Stevener. and Ferdinand Trost, whose cases are discussed infra. '6 Crenshaw Jr., testified that he did not remember receiving a copy of the "Judgment and Decision" against him. However, he admitted receiv- ing the covering letter, which advised him that he had been fined anid referred to his right to appeal. i7 See also, supra, fn. 14. 1i The same is true of the judgments issued against Stevener and Fer- dinand Trost, discussed infra. May 27 minutes state that the witnesses against Kenneth Smith were Roland Smith (no kin to Kenneth Smith), Grinston, and Ralph Hatchet, but the judgment against Kenneth Smith names Roland Smith and Arnold Brown as witnesses. The letter to the employee which accompanied each of these judgments advised the employee of his right to appeal, and enclosed a copy of the provisions of the In- ternational constitution and union bylaws which detailed the employee's right to appeal. Laying to one side the Union's conduct in making copies of the International constitution available to members during union meetings, these letters constituted, so far as the record shows, the first occasion on which the Union had advised any of these employees of the provision making resignations in- effective until 30 days after their receipt by the Union's secretary-treasurer. Further, the issuance of these judg- ments constituted the first occasion on which the Union had alleged to employees Alexander, Bahr, Loveless, Phillips, Thomas, and Ziegelmeyer that they had not been paid up in their dues at the time of their purported resignations. For reasons set forth supra, section II,C,1, and infra, section II,D,l,b, I find that as of the date that the Union's secretary-treasurer received their respective resignation letters, Alexander, Loveless, and Ziegelmeyer were in fact paid up in their dues.1 9 None of the 14 em- ployees named in this section II.C,2, filed an intraunion appeal of his fine. 3. Disciplining of employees charged partly with admittedly preresignation conduct a. Circumstances surrounding purported resignations of such emplqoees (1) Herman Hueffmeier On May 9, Herman Hueffmeier received the intraun- ion charges filed against him based on remarks allegedly made by him on the picket line. Hueffmeier was directed to appear for an intraunion hearing on May 24 at a speci- fied hour and location. After receiving these charges, Hueffmeier told picket captain/negotiating committee- man/steward Arnold Brown that Hueffmeier's money was running out, he did not know how much he was going to benefit from food stamps, the Union wanted to fine him, and he had no money to pay a fine. Brown said, "Well . . . I'm not supposed to tell you . . . and don't tell anybody but the fine is just set here to scare you .... You don't have nothing to worry about as long as you don't cross the line . . . and you ain't going to get no fine, no how." On Saturday, May 20, Hueffmeier obtained, apparently from Line Manager Cosmann, two copies of a typewrit- ten Gazzoli resignation letter. Hueffmeier showed this letter to his attorney, Stout, and said that Hueffmeier had "heard there was dues owed yet." Stout asked whether the Union owed Hueffmeier any money. Hueffmeier said that he had picketed all that week and was to be paid '" The 10 judgments mailed on July 19 had been issued on various dates between June 12 and 30. The record fails to show the reason for the delay. 894 MISCELLANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610 therefor the following Monday. Stout told him to leave the money with the Union, "that this money should over-compensate for the dues"; and that if he wanted to go back to work, "I believe that's completely legal." Then, Hueffmeier signed both letters. Hueffmeier asked Cosmann to send one letter to the Union by registered mail, and he said he would. This letter was sent to Horn on May 23 by registered mail at company expense. On Monday, May 22, Hueffmeier approached the area where the picket line was supposed to be. The man who was supposed to be picketing, perhaps Bill Trost, was asleep in his car. Hueffmeier put the other copy of the letter under the sleeper's driver-side windshield wiper, and then went into work. Hueffmeier never collected the $100 due him for picketing the previous week. Hueffmeier had been a member for 6 years. He attend- ed the meetings on April 4, 12, and 24, but not the Feb- ruary 5 meeting. He paid no dues during the strike. He testified that Metz never told him that he had to pay his dues in order to collect strike benefits, that he had heard a rumor to this effect, and that he never inquired wheth- er this was true. Hueffmeier picketed regularly until he crossed the picket line, and picked up his strike benefits personally. (2) Ralph Gregory Hueffmeier On May 5, Ralph Gregory (Greg) Hueffmeier re- ceived a copy of the intraunion charges filed against him, alleging that he had tried to talk other members into crossing the picket line. The letter directed him to appear for an intraunion hearing on May 24 at a speci- fied hour and location. About May 17, while Hueffmeier was picketing, Metz told him not to worry about the charges because the Union was more worried about the people that had crossed the picket line.2 0 Later that day, Hueffmeier telephoned Line Manager Cosmann and asked about obtaining a written resignation to sign. That same day, Cosmann gave him two copies of the Gazzoli resignation letter. Hueffmeier signed both copies on May 17. He gave one copy to Cosmann, who on May 23 sent a copy to Horn by registered mail. Also on May 17, Hueffmeier gave the other copy to picket captain/negotiating committeeman/steward Roland Smith, who said, "You know you're in trouble now." On the following day, Hueffmeier crossed the picket line and went to work. Hueffmeier never tried to collect his pay for picketing the last day he did so. Hueffmeier, a member for 6 years, paid no dues during the strike. He attended the meetings on February 5 and April 4, 12, and 24. He testified that he was never "actu- ally told" that he would have to pay dues while out on strike, although he heard from "among the men" that he had to pay and did not thereafter ask any union officer whether that was true. He sometimes picked up his strike benefits himself, but Bahr did so for him most of the time. O0 This finding is based on Hueffmeier's testimony. For demeanor rea- sons, I do not accept Metz' version of the conversation. (3) Albert Stevener Albert Stevener paid no dues during the strike. On May 16, he signed the typewritten Gazzoli resignation letters and returned to work with Bahr and others. As previously noted, this letter was given to picket captain/negotiating committeeman/chief steward Grin- ston on May 16, and was mailed to Horn on May 17. Stevener had been a member for 6 years. He did not attend regular monthly meetings, though he knew of them. He attended the meetings on April 4, 12, and 24, but not the February 5 meeting. He testified that he had never been told to pay dues while he was out on strike. He regularly picked up strike benefits and received them for all but the last day he picketed, which day's benefits he never tried to obtain. (4) Ferdinand Trost On May 8, Ferdinand Trost received a copy of the in- traunion charges alleging that he had made certain re- marks to a "man on the committee." He was directed to appear at an intraunion hearing on May 24 at a specified hour and location. Trost asked picket captain/negotiating committeeman Ralph Hatchet, who was the "man" in question and was one of the three who signed the charges, what they meant. Hatchet said that he had just signed the paper, he had not read it. Trost said that he thought he had freedom of speech. Hatchet then read the charges and said that Trost "wouldn't have nothing to worry about, that they was just trying to scare [him] to keep [his] mouth shut." On May 16, Trost signed the two resignation letters given him by Gazzoli, and returned to work with Bahr and others. As previously noted, one of the letters was given to picket captain/negotiating committeeman/chief steward Grinston on May 16, and the other was mailed to Horn on May 17. Trost paid no dues during the strike. He was scheduled to picket on May 15, and paid his brother to picket for him, but did not collect for that day. Ferdinand Trost had been a member for 9 years. Before resigning, he read the constitutional provisions about resigning. He heard Metz say to another employee who was collecting strike benefits that dues had to be paid during the strike and that the employees had until the end of the month before they had to worry about the dues. Trost attended the meetings on April 4 and 24, but not the meetings on February 5 or April 12. b. The hearing on the charges against James Caldwell, Ricky Dalton, and Ralph Gregory Hueffmeier On May 5, James Caldwell, Ricky Dalton, and Ralph Gregory Hueffmeier received copies of the charges filed against them, alleging that on April 6 they had orally abused other members and tried to talk them into cross- ing the picket line. All three men were directed to attend a union hearing on May 24. Caldwell, who had made no attempt to resign and was still actively participating in the strike and the picketing, telephoned Union President Metz about the charges. Metz said that he would look into the matter, and then get back to Caldwell. Caldwell did not attend the hearing, nor was the hearing attended 895 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Hueffmeier, who before the hearing had purported to resign from the Union and had been charged with break- ing the union rules by crossing the picket line; the union letter directing him to attend a hearing on these charges was sent out on May 24, the day of the Caldwell-Dalton- Hueffmeier hearing. Dalton was the only employee named in this charge who attended this hearing. Also present were picket captain/negotiating committeeman Ralph Hatchet; picket captain/negotiating committeeman/steward Arnold Brown; picket captain/negotiating committeeman/chief steward Grinston; Union President Metz; Union Vice President Robert Stratmann; Union Secretary-Treasurer Horn; Union Recording Secretary Glen Boyer; and union executive board members Thomas Ebert, Clarence Wittier, and Jack Kuper. Dalton made no attempt to resign from the Union. Metz was asked whether Dalton, who during the strike had obtained a job with another employer whose employees were represented by the Union, whether he was in good standing down at that employer. Metz said yes. Brown said that he felt Dalton was an innocent bystander, and since the first day of the strike had been conducting himself like a good union man. With Metz' acquiescence, Ebert, Grinston, and Hatchet told Dalton that the charges would be dropped if he would agree not to cross the picket line. Dalton promised that he would not cross it. Hatchet said that he, Brown, and Grinston were dropping the charges filed against Dalton and Caldwell. Grinston (who had not signed the charges) and Brown concurred. The ex- ecutive board then considered these charges dropped.21 Nobody said anything about the picket line conversation which was the subject of the charges. Later, Metz tele- phoned Caldwell that the charges against him had been dropped because he "didn't go back across the line and go to work and [he] stayed out on the picket line." The board then proceeded to consider the charges against Ralph Gregory Hueffmeier. Ralph Hatchet accu- rately stated that on April 6 Hueffmeier had said the contract had not been explained to him right by the busi- ness agent and the picket captains. Hatchet further stated that on April 6 he had seen Hueffmeier "talking to Jim Cosmann a boss and giving information to the Company, that he had only told Greg Hueffmeier about, and was badmouthing the picket captains and urging other people to go across the picket line and return to work." Hatchet explained to the executive board that he based these as- sertions on the fact that Hueffmeier and other pickets had engaged in a picket line conversation, which Hatch- et did not overhear, with Cosmann. In fact, Hueffmeier had not on April 6 urged people to work behind the picket line, the record fails to show whether he had in fact given information to Cosmann or any other member of management, and the record fails to show whether he had in fact "bad mouthed" the picket captains other than criticizing their explanation of the contract (see supra, sec. II,B,I). Grinston stated that Hueffmeier and others were talking too much with management, and that Grin- ston had told them to "quit trying to bargain with the 21 These charges had been signed by 14 people. So far as the record shows, of these 14 signers only Hatchet and Brown attended the hearing. Company and to be a union man." The record fails to show whether Hueffmeier in fact tried on April 6 to bar- gain with the Company. The minutes of the May 24 executive board meeting were offered by the Union and received in evidence to show what in fact happened at the hearing. These min- utes state, inter alia, as follows: After discussing the matter among themselves, the executive board found that Hueffmeier had violated article XXI, section I (d, f, k, o), of the bylaws. These provisions forbid "(d) Violation of the oath of loyalty to this organization and our Inter- national Union 22 .... (f) Gross disloyalty or conduct unbecoming a member .... (k) Activities which tend to bring this organization or the International Union into disrepute .... (o) Such other acts and conduct which will be considered inconsistent with the duties, obliga- tions, and fealty to a member of a trade union, and . . . violation of sound trade union principles." Hueffmeier was fined $50 on each count, a total of $200, and was put on probation for 6 months. The minutes further state that the executive board found that Hueffmeier had not violated article XXI, sec- tion 1, subsection (i), of the Union's bylaws, which sub- section forbids "Abuse of fellow members or officers by written or oral communications." The minutes say noth- ing at all about any disposition of the allegations in the charges that Hueffmeier had violated certain provisions, discussed infra, of the International constitution. c. The hearing on the charges against Herman Hueffmeier, Stevener, and Ferdinand Trost Immediately after the hearing on the intraunion charges against Caldwell, Dalton, and Ralph Gregory Hueffmeier, the executive board conducted a hearing on the intraunion charges against Herman Hueffmeier, Ste- vener, and Ferdinand Trost. By the date of this May 24 hearing, all three had submitted purported resignations to the Union and had received charges based on their action in crossing the picket line. Also, by this time, a May 31 union hearing had been scheduled on these charges against Stevener and Ferdinand Trost. None of the three attended the May 24 hearing. Ferdinand Trost failed to attend because he feared for his personal safety and his attorney said that he saw no real reason for going down there "because its like a kangaroo court." The minutes of tbe May 24 hearing, which were of- fered and received in evidence to show what in fact hap- pened there, show that Grinston there stated that he had heard Stevener and Ferdinand Trost "telling the Compa- ny what a big thief Roland Smith was and bad mouthing the committee." The minutes say nothing about Herman Hueffmeier's alleged conduct, nor is there any testimoni- al evidence about what, if anything, was said about it on that occasion. 23 As previously noted (sec. II,B,2), at the 22 The membership oath in the Local's bylaws prior to April 1978 states in part (see art. XXXIV, sec. 1): I solemnly promise and pledge to be a loyal member of (the Local] and of the International . . . I will respect and abide by all provi- sions of our By-laws and the International Constitution, and regula- tions, and will fully comply with all decisions of the majority. s Grinston and Metz attended this meeting and testified on the Union's behalf, but were not asked what happened there. 896 MISCELLANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610 hearing before me Grinston attributed the "thief' remark to Stevener alone, and this remark was in fact made by Herman Hueffmeier. The foregoing aside, the only evi- dence that either Stevener or Trost "bad mouthed" the committee is Trost's remarks to picket captain/negotiating committeeman Hatchet that a vote on whether to accept the Company's offer should have been by secret ballot rather than by a show of hands. The minutes further state as follows: After discussion, the executive board found that Herman Hueffmeier, Ste- vener, and Ferdinand Trost had violated article XXI, section I (b, d, f, i, and o), of the Union's bylaws. Each was fined $50 on each count, a total of $250, and put on 6 months' probation. These portions by the bylaws forbid "(b) Violation of the responsibilities of members of this organization as an institution .... (d) Violation of the oath of loyalty to this organization and our International Union [see supra, fn. 22] .... (f) Gross disloyalty or conduct becoming a member .. .. (i) Abuse of fellow members or officers by written or oral communications . . . . (o) Such other acts and conduct which will be con- sidered inconsistent with the duties, obligations and fealty to a member of a trade union, and for violation of sound trade union principles." d. The Union's response to the purported resignations of Herman Hueffmeier, Ralph Gregory Hueffmeier, Stevener, and Ferdinand Trost By identical letters to Herman Hueffmeier, Ralph Gregory Hueffmeier, Stevener, and Ferdinand Trost, dated 2 days after their May 24 hearing on the charges based on alleged conduct while picketing, Union Secre- tary-Treasurer Horn stated: We have received a notice from you wherein you state you are resigning from Teamsters Local 610, you also stated you have paid all dues and other ob- ligations. After checking our records, I find your statement is not true, therefore your resignation cannot be ef- fective until all obligations are satisfied. Also, you have had charges preferred against you. You now must stand trial before Local 610 Ex- ecutive Board to answer the charges. These letters said nothing about the 30-day waiting period specified in the Union's bylaws and the Interna- tional's constitution, nor did they specify the amounts which the employees allegedly owed to the Union. For the reasons stated supra, section II,C,I, I find that each of these employees was paid up in his dues through April. I further find that because each of them was owed but failed to collect at least I day's pay for picketing, all four were also paid up through May (see supra, fn. 13, and attached text). e. The discipline notifications received by Herman Hueffmeier, Ralph Gregory Hueffmeier, Stevener, and Ferdinand Trost By letter from Horn also dated May 26, Ralph Greg- ory Hueffmeier was advised of the executive board's May 24 determination, reflectd in the minutes, regarding his alleged breach of the Local's bylaws. He was further advised that he was fined $50 on each of the four counts on which he was found guilty of violating the Local's bylaws, and that if he failed to pay this $200 sum within 30 days the Union would sue for the amount of the fines, plus court costs and legal fees. In addition, this letter stated that he had been found guilty of violating article XIX, section 6, subsections 2 and 8, of the International constitution. The charges against him had accused him of violating these provisions, and also subsections 4 and 9; but the executive board minutes do not refer to any of these allegations. The International constitutional provi- sions which the May 26 letter said he had violated forbid "(2) Violation of the oath of loyalty to the Local Union and the International Union [see supra, fn. 22] .... (8) Any action which is disruptive of, or interferes with the performance or obligations of other members or Local Unions under collective bargaining agreements." The constitutional provisions specified in the charges but not referred to in the May 26 letter forbid "(4) Secession, or fostering the same .... (9) Crossing an authorized picket line established by the member's Local Union." Thereafter, on June 16, Horn, Metz, Boyer, Mittler, Kuper, Stratmann, and executive board member Barney Vaughn signed a judgment and decision against Ralph Gregory Hueffmeier fining him for crossing the picket line on and after May 18 (see infra). For reasons unex- plained in the record, Horn did not forward this June 16 document to Hueffmeier until July 19. That same day, July 19, Horn forwarded to Hueffmeier an "Amended Judgment and Decision" which superseded the May 26 judgment and decision in the case involving Hueffmeier's alleged April 6 remarks on the picket line. This docu- ment is dated June 23, and bears the same signatures as the judgment regarding Hueffmeier's action in crossing the picket line. The record fails to show whether Vaughn was present at the hearing regarding this April 6 conduct. This amended judgment recites that at the May 24 hearing Ralph Hatchet testified that Hueffmeier "tried to talk to other members . . . who were on strike to abandon the strike, cross the picket line and go back to work." The amended judgment says nothing about Hatchet's May 24 assertions regarding Hueffmeier's al- leged "bad mouthing the picket captains" and giving confidential information to the Company, or about Grin- ston's statements at that hearing. Like the May 26 letter (to this extent memorialized in the May 24 minutes), the June 23 amended judgment recites that Hueffmeier had not violated article XXI, section I(i), of the Union's bylaws. Also like the May 26 letter (to this extent memo- rialized in the May 24 minutes), the June 23 amended judgment recites that Hueffmeier was guilty of violating article XXI, section I (d, f, k, and o), of the Union's bylaws. Also, like the May 26 letter (to this extent, not memorialized in the May 24 minutes), the June 23 amended judgment recites that Hueffmeier had violated article XIX, section 6(2), of the International constitu- tion. However, the June 23 amended judgment recites that Hueffmeier had violated article XIX, section 6(4), but not article XIX, sections 6(8) and (9), whereas the May 26 letter had recited that he had violated article 897 DECISIONS OF NATIONAL LABOR RELATIONS BOARD XIX, section 6(8), and did not refer to section 6(4) or (9) at all. Further, the amended judgment increased Hueff- meier's $200 fine to $300, and made no reference to the 6-month probation referred to in the May 24 minutes and the May 26 letter. By identical letters from Horn dated May 26, Herman Hueffmeier, Albert Stevener, and Ferdinand Trost were each advised that they had been found guilty on each of five counts and fined $50 on each count, a total of $250. The letters further stated that, if the fines were not paid within 30 days, the Union would sue for the amount of the fines, plus court costs and legal fees. The letters did not refer to the 6-month probation referred to in the min- utes. On July 19, Horn forwarded to Herman Hueffmeier and Stevener documents entitled "Amended Judgment and Decision," dated June 23 and bearing the same sig- natures as the previously described judgments, which reached the result reflected in the May 26 letter. Each amended judgment averred that Ralph Hatchet, Grin- ston, and Roland Smith had testified at the May 24 hear- ing that Herman Hueffmeier and Stevener had "orally abused members and committeemen." The May 24 min- utes contain no description of the case against Herman Hueffmeier, and no assertion that Hatchet or Smith had said anything about Stevener's conduct. Hatchet and Grinston both testified before me, but neither was asked about this matter. Roland Smith did not testify before me. There is no evidence that he was present during any of the incidents in question, and I infer from the circum- stances of these incidents that he was not there. Also on July 19, Horn forwarded to Ferdinand Trost an amended judgment and decision bearing the same sig- natures and June 23 date as the other amended judg- ments. This amended judgment reached the same result as the May 26 letter. It contained the assertion, not re- flected in the May 24 minutes, that at the hearing Ralph Hatchet had said that on April 28 Trost "wanted [Hatch- et] to talk other members of Local 610 who were on strike to abandon the strike, cross the picket line and go back to work." Trost's testimony before me about this conversation stands uncontradicted (see supra, sec. II, B, 2). Ralph Hatchet testified before me, but was not asked about this conversation. Charges based on crossing the picket line were filed against Herman Hueffmeier on May 23, and against Ste- vener and Ferdinand Trost on May 16. They were ad- vised of the time and place of the hearing on these charges, but failed to appear. On July 19, 1978, Horn for- warded to each of these three employees a judgment and decision, bearing the same signatures as the judgments received by R. G. Hueffmeier. There are unexplained discrepancies between the judgments directed to Ste- vener and Trost and the minutes of the hearings on which these judgments were allegedly based (see supra, fn. 18 and attached text). These judgments imposed fines on the same basis as and at the same rate as the previous- ly described judgments for crossing the picket line. The language of the judgments forwarded to the Hueffmeiers, Stevener, and Ferdinand Trost based in terms solely on their action in crossing the picket line is substantially the same as the language of the judgments described supra, section II,C,2,e. As previously noted, the Union had made copies of the International's consti- tution available at union meetings, Ralph Gregory Hueff- meier had given a copy to Ferdinand Trost, and Trost had read the provisions regarding resignation. The fore- going aside, these judgments, so far as the record shows, constituted the Union's first assertion to any of them that their resignations would not become effective until, at the earliest, 30 days after their receipt. When forwarding the various judgments and amended judgments to the Hueffmeiers, Stevener, and Ferdinand Trost, the Union also forwarded portions of the Interna- tional constitution and union bylaws which advised them of the procedure for an intraunion appeal. None of them attempted such an appeal. D. Analysis and Conclusions 1. The fines for crossing the picket line a. Introduction Section 7 of the Act guarantees to employees the rights to engage in concerted activities for the purpose of collective bargaining and also "the right to refrain from any or all of such activities .... " Section 8(b)(l)(A) protects these rights by making it an unfair labor practice for a labor organization "to restrain or coerce . . . em- ployees 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 re- spect to the acquisition or retention of membership there- in." One of the well-established rights within the right to refrain from concerted activities is the right to refrain from participation in a strike. Booster Lodge No. 405, In- ternational Association of Machinists [Boeing Co.] v. N.L.R.B., 412 U.S. 84, 88 (1973). As a member of a union, an employee may waive the right to refrain from striking to the extent that the union properly enacts a rule prohibiting its members from crossing its lawful picket line. Such a rule, when imposed on employees who enjoy full membership rights, constitutes legitimate internal regulation of the conduct of the union's own members. N.L.R.B. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195-196 (1967); N.L.R.B. v. Granite State Joint Board Textile Workers Union [International Paper Box Machine Co.], 409 U.S. 213, 215 (1972). "Yet when a member lawfully resigns from the union its power over him ends." 409 U.S. at 215. "[W]hen there is a lawful dissolution of a union-member relation, the union has no more control over the former member than it has over the man in the street." 409 U.S. at 217. Any effort to fine nonmembers constitutes "an attempt to affect external ac- tivities, an area in which Congress did not intend to permit such union regulation." Booster Lodge No. 405, In- ternational Association of Machinists [Boeing] v. N.L.R.B., 459 F.2d 1143, 1151, fn. 10 (D.C. Cir. 1972), affd. on other grounds 412 U.S. 84. Imposition of such fines for employees' postresignation conduct of working during a strike violates Section 8(b)(l)(A). Id. at 1154. In contending that Section 8(b)1)(A) was not violated in connection with the employees' conduct in crossing 898 MISCELLANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610 the picket line, the Union contends that none of them ef- fectively withdrew from the Union because their pur- ported resignations allegedly failed to comply with the Union's internal rules regarding withdrawals. 24 In con- tending that 8(b)(1)(A) violations were made out, the General Counsel and counsel for the Charging Parties contend, inter alia, that for various reasons the Union's internal rules did not validly restrict these members' rights to resign under the circumstances of this case. b. Finesfor working before the Union received the purported resignations Assuming arguendo the total invalidity of these restric- tions on the right to resign, these members' purported resignations would nonetheless be ineffective until re- ceived by the Union. TKB International Corporation t/a Hendricks-Miller Typographic Company. 240 NLRB 1082, 1088, 1098, fn. 29 (1979). The only union official with actual authority to receive such resignations on the Union's behalf was its secretary-treasurer, Horn. I conclude that the Union did not receive such resig- nations when members Alexander, Bergman, Herman Hueffmeier, and Loveless delivered resignation letters to rank-and-file pickets who were on picket duty, because receipt of such resignations was not within the apparent scope of such pickets' authority. Ilendricks-Miller, supra, 240 NLRB at 1098, fn. 30. Hendricks-Miller would call for a similar conclusion with respect to resignations de- livered to persons whose sole authority was that of picket captains. The picket captains were selected by the business agent, but in the Company's shop the business agents had a practice of appointing the negotiating com- mittee to such jobs. The picket captains set up posts, drew up a schedule for each picket, kept a record of when each in fact picketed, received notifications from employees when they could not fill their picketing as- signments, and arranged for or acted as substitutes for absent pickets. If problems arose, the picket captains were to telephone Union President Metz or the Union's legal counsel. At the beginning of the strike, Union President Metz told the membership that the picket cap- tains were supposed to "keep the peace" on the picket line, "watch out that there wasn't any drinking" on the picket line, and report events on the line. I conclude that the apparent authority conferred by picket captain status was limited to the conduct of the picketing. According- ly, I conclude that the Union did not receive a resigna- tion letter from Terence Trost when he delivered such a letter to picket captain Ralph Hatchet. The additional authority which negotiating committee membership con- ferred on Ralph Hatchet consisted of the authority to participate with the Union's president in negotiating with the Company regarding the particular contract under discussion. Members of the negotiating committee, who 24 The Union does not reiterate in its post-hearing brief the assertion in its answer that the claimants are estopped by their failure to avail them- selves of intraunion remedies Because iny eventual findings of unlawful fines are limited to fines imposed hcuaLse of employee conduct after the employee had effectively resigned. I regard as immaterial to this case any limitations which the existence of the Union's intraunion remedies alleg- edly purport to impose on members' right to obtain relief from the Board. Cf. N.L.R.B. v Industrial Union of Marine and Shipbuilding Work- ers [United States Lines Co.]. 391 I. S 418 (1968) are unpaid, are elected by the membership and have no duties once the pending contract is ratified. I conclude that the apparent authority of negotiating committee members does not include the receipt of resignations. Also, I conclude that the receipt of resignations did not lie within the apparent authority of Roland Smith, who received a resignation letter from Ziegelmeyer: Arnold Brown, who may have received a resignation letter from Phillips; or Lee Grinston, who received resig- nation letters signed by Bahr, Crehshaw Sr., Stevener, Thomas (himself a steward), Ferdinand Trost, and (per- haps) Phillips, and refused to accent a resignation letter tendered by Wieberg. 25 In addition to being picket cap- tains and negotiating committeemen, Roland Smith and Arnold Brown were stewards and Grinston was chief steward. The membership had elected them to the posi- tion of steward, but the record fails to show how Grin- ston became chief steward. Stewards are not paid for their services as stewards, and pay the same dues as other members. Smith and Brown had been elected as stewards 6 or 8 weeks before the strike, and there is no evidence of the extent to which they had actively func- tioned as stewards. Grinston, a steward for 13 years, cre- dibly testified that his job was to listen to employee problems and grievances and to take them up with the Company. He attended periodic meetings of the stew- ards' council, who discuss matters directly affecting the shop, advise the executive board about problems and issues, and make periodic reports and recommendations to the membership. There is no evidence that stewards have anything to do with applications for membership. Article XI, section 6, of the Local's bylaws expressly prohibits stewards from handling or collecting any union moneys, including dues, which the members paid at the union hall after the Company's contractual checkoff obli- gation terminated. I conclude that any additional appar- ent authority which stewardship afforded to Roland Smith, Arnold Brown, and Grinston consisted at least primarily of apparent authority in connection with griev- ances. Moreover, I conclude that any such additional ap- parent authority did not include authority to accept res- ignations, particularly because employees always ob- tained withdrawal cards at the union hall and paid all their dues there after the checkoff agreement terminated. In short, even accepting the views of the General Counsel and Charging Parties' counsel about the ineffec- tiveness of the Union's internal restrictions on the right to resign, the only effective resignations submitted by any of the 18 claimants were the resignations from all 18 which were sent through the mail. 26 The Union con- cedes having actually received all of them, and there is no direct evidence as to the actual date or hour of re- ceipt. Accordingly, the letters are presumed to have been 25 Grinston also received a resignation letter from Crenshaw Jr. on May 16b However, its deliver) to Grinston could not have affected Cren- shaw Jr.'s rights herein, because he made no dues payments during the strike and did not return to work until several days after his resignation uas mailed to the Union 26 Several employees delivered resignation letters to members of the Company's management. No contention is made that this constituted ef- fective deliver) to the Union, nor do I perceive any basis for such a con- tentlon 899 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received the day after the date of mailing and at an hour before the employee crossed the picket line. Hendricks- Miller, supra, 240 NLRB 1082, 1088, 1098 (Gray); cf. United Construction Workers, Local 10 (Erhardt Construc- tion Co.), 187 NLRB 762, 763 (1971); District Lodge No. 99 and Lodge No. 2139, both affiliated with International Association of Machinists (General Electric Co.), 194 NLRB 938 (1972), modified 489 F.2d 769 (Ist Cir. 1974). In view of the foregoing, I find at this point that the Union did not violate the Act by the conduct set forth infra in Conclusion of Law 5(a). c. Fines for working after resignations became effective under Union's internal rules On the other hand, assuming arguendo the complete validity of the Union's rule regarding resignations, the resignations of the employees who were in fact paid up in their dues at the time such resignations were received became effective 30 days after receipt. Nonetheless, such employees were fined for working behind the picket line after the elapse of that period. Accordingly, and without regard to any conclusions subsequently reached about the validity of the rule and of its enforcement, I find at this point that the Union violated Section 8(b)(1)(A) by fining employees Alexander and Williams for working behind the picket line and after June 26; fining employ- ees Herman Hueffmeier, Ralph Gregory Hueffmeier, and Terence Trost for working behind the picket line on and after June 23; fining employee Loveless for working behind the picket line on and after July 26; fining em- ployee Kenneth Smith for working behind the picket line on and after June 15; and fining employees Stevener and Ferdinand Trost for working behind the picket line on and after June 17. In making these findings, I regard as immaterial the dates of the various procedural steps which led up to the fines imposed on these employees. Although some of these fines have been found partly lawful, I find hereaf- ter that all of them were partly unlawful regardless of whether these employees were delinquent in their dues. In any event, the Union does not appear to contend that if a member is paid up when the Union receives his res- ignation, this resignation may thereafter be rendered inef- fective by the imposition of fines within the 30-day wait- ing period. Indeed, union counsel stated on the record before me (although his post-hearing brief contends oth- erwise) that the 30-day period was a maximum rather than a fixed period. Moreover, when admittedly fining the 18 claimants for working behind the picket line, the Union advised all of them that they owed "dues," with- out referring to the fines already imposed on four of them ostensibly for admittedly preresignation conduct. I note, moreover, that none of the employees whose fines have been found unlawful up to this point in this Deci- sion was notified of his fine until after the expiration of the 30-day period. d. Effect of Union's alleged failure to meet notice standards regarding resignation requirements The General Counsel and counsel for the Charging Parties contend that, even if the Union's restrictions on resignation are otherwise valid, they could not lawfully be applied to these employees, because the employees al- legedly did not know of or consent to such restrictions. In a series of cases initiated by International Union of Electrical, Radio and Machine Workers, AFL-CIO, Frigi- daire Local 801 [General Motors Corporation] v. N.L.R.B., 307 F.2d 679, 683-684 (D.C. Cir. 1962), cert. denied 371 U.S. 936 (1962), the Board and the courts have held that, before a collective-bargaining representative can lawfully request the discharge of a unit employee for failing to become or remain a good-standing member pursuant to a lawful union-security clause, the union must inform the employee of his rights and obligations so that the em- ployee may take all necessary steps to protect his job. Frigidaire relied in part upon the union duty of fair rep- resentation flowing mostly, at least, from the union's stat- utory powers as the employees' exclusive representa- tive. 2 7 However, where certain employees' obligations under a lawful maintenance-of-membership clause turned on the effectiveness of their purported resignation just before working during a strike, the Board, in effect, merged portions of Boeing-Granite State28 into the Frigi- daire class of cases; and in determining whether the Frigidaire standards had been satisfied, used the standards articulated by the Supreme Court in Boeing-Granite State when it determined the procedure under which an em- ployee can by resignation prevent the union from fining him for working during a strike. Local 1384, United Auto- mobile, Aerospace, Agricultural Implement Workers (Ex- Cell-O Corporation), 227 NLRB 1045 (1977). Citing Boeing and Granite State, Ex-Cell-O stated, ". . . the proper standard is whether the employees knew of or had consented to [the union's] restrictions on their resig- nation right," that the burden was on the union to pro- duce evidence indicating that they had notice, and that as to this issue the union had the burden of persuasion. Ex-Cell-O, supra, 227 NLRB at 1048-1049, and fn. 21. Thereafter, to this extent effecting a further merger be- tween Frigidaire cases and Boeing-Granite State cases, the Board applied the foregoing Ex-Cell-O standards to a case which, like Boeing and Granite State, involved a fine for working during a strike rather than an employee's job rights. Oil, Chemical and Atomic Workers Internation- al Union, Local 6-578, AFL-CIO (Gordy's, Inc.), 238 NLRB 1227, 1229-32 (1978). 2 9 Before the employees tendered their resignation letters, the Union undisputedly did no more in connection with advising members how to resign than make available to them at union meetings copies of the International consti- tution containing such provisions.3 0 The General Coun- 27 See, eg., Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), cited in Frigidaire, supra, 307 F.2d at 684. 28 412 U.S. at 88; 409 U.S. at 216-218. 29 Cf United Food and Commercial Workers International Union and its L.ocal 222 (Iowa Beef Processors), 245 NLRB 1035 (1979). However, art. XXXII of the Local's bylaws and art. XIV, sec. 3, of the International constitution render the Local the exclusive representative of each member for the purposes of collective bargaining, negotiating bargaining agreements, and handling grievances. 30 Art. XIV, sec. 2, of the International constitution entitles a new member to receive on request a free copy of the International constitu- tion. However, a provision in a document which a member has not seen would hardly alert him to his right to obtain the document. 900 MISCELL ANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610 sel seems to argue that, because the Union did not other- wise during this period specifically advise its members of how to resign, after receiving the resignation letters the Union was wholly disabled from relying on the Interna- tional constitutional requirements, even if wholly proper. regarding membership resignations. However, I would regard as pointless a rule which precluded a union from enforcing any constitutional provisions which it had not specifically explained to the membership in advance. An anticipatory explanation of the entire constitution would likely be no shorter and clearer than the original, and would probably not improve the membership's chances of real understanding. Rather. I regard the union's duty to explain as ordinarily limited to situations where the members specifically ask for an explanation or where the union has reason to suspect the development of actual problems involving the interpretation of union rules. In the instant case, the claimants here were the first mem- bers during a period of at least 8 years who tried to resign, and there is no evidence that they asked the Union how to resign or that the Union otherwise had reason to anticipate that any particular employee wanted to resign. Particularly in view of Gordy'S express reliance on the fact that copies of the respondent union's constitu- tion were not distributed to ne~s members, I read Gordy's subsequent comment that "a constitutional provision is not a substitute for proper notice" as meaning that the mere existence of a constitutional provision is not such a substitute. However, Ex-Cell-O in light of Gordy s establishes that, once the Union's receipt of a nonconforming resig- nation letter showed that the employee wanted to resign but was unaware of the governing constitutional require- ments, that resignation was effective unless the Union took reasonably prompt steps to tell the employee about the constitutional restrictions on resignation. Neverthe- less, upon the Union's May 16 receipt of Kenneth Smith's simple note ("I Kenneth R. Smith, Jr., Resign from [the Union] on May 15, 1978"), the Union waited 10 days (during which he performed work for which the Union later fined him $1,680) before sending him a letter which inaccurately attributed to him the representation that he had paid "all dues and other obligations," inaccu- rately denied the truth of this alleged representation, and said nothing at all about the 30-day waiting period. Moreover, on July 19, the Union mailed Smith a judg- ment which inaccurately asserted that Smith still owed dues to the Union, referred for the first time to the 30- day waiting period, and not only imposed fines of $210 a day until the June 12 date of the judgment, but also im- posed fines of $200 a day until the date the strike "shall cease" or the date his resignation "becomes effective," even though Smith's resignation had become effective on June 15 under the Union's own rules. Quite similarly, 21 days (and $3,360 in fines) after receiving employee Wil- liams' resignation letter, the Union sent him a letter inac- curately denying the truth of his representation that he had paid all dues, fines, and obligations. Then, on July 19, the Union mailed Williams a judgment which inaccu- rately asserted that Williams still owed dues to the Union, referred for the first time to the 30-day waiting period, and imposed a fine of $200 a day until the date the strike "shall cease" or the date Williams' resignation "shall become effective," even though Williams' resigna- tion had become effective on June 26 under the Union's own rules. Moreover, so far as the record shows, the Union made no effort to modify this judgment even after accepting Williams' accurate representation, about late July, that he owed no dues. As to Smith and Williams, the Union plainly failed to meet the notice standards set forth in the cases cited above. I find at this point that the Union violated Section 8(b)(1)(A) by fining Kenneth Smith for working behind the picket line on and after May 16, and by fining James Williams for working behind the picket line on and after May 27. Assuming ar- guendo that the 30-day waiting period could lawfully have been applied to them if the Union had given them adequate and timely notice of its existence, I conclude that they nonetheless could not be laswfully fined for working during this period, because the Union's inaccu- rate prejudgment letters pointing to alleged defects in the employees' purported resignations failed to advise either of them about the 30-day period, which the Union's communications to them never mentioned until after it had expired. Likewise, after receiving resignation letters from Alex- ander, the Hueffmeiers, Loveless, Stevener, the Trosts, and Ziegelmeyer, the Union inaccurately advised them that they had not in fact paid "all dues and other obliga- tions";3 did not advise them of the 30-day waiting period until more than 30 days after receiving their pur- ported resignations; and issued judgments against them which imposed fines for working behind the picket line after, as well as before, the elapse of the 30-day period. I find that the Union failed to meet the notice standards as to these seven employees. For the reasons set forth in connection with Smith and Williams, I find that these seven employees could not lawfully be fined for working during the 30-day waiting period even assuming its valid- ity if the Union had given them adequate and timely notice thereof. Accordingly, I find at this point that the Union violated Section 8(b)(1)(A) by fining Earl Alexan- der for working behind the picket line on and after May 27; by fining Herman Hueffmeier, Ralph Gregory Hueff- meier, and Terence Trost for working behind the picket line on and after May 24: by fining Jerry Loveless for working behind the picket line on and after June 27: by fining Albert Stevener and Ferdinand Trost for working behind the picket line on and after May 18: and by fining Albert Ziegelmeyer for working behind the picket line on and after August 18. Finally, for reasons applicable even to the 8 employees who were in fact delinquent in their dues, I find that the Union failed to meet the notice standards as to any of the 18 employees. I give little independent sweight to any failure to advise each of the employees before the pur- ported resignations that union rules required them to continue to pay dues, although at a reduced rate, during the strike. Before the purported resignations, the Union had no reason to suppose that the employees had any- "3 The Union gave such replies to some of these purported resigna tions almost immediati ly after receiving them Other employees, howev- er. did not receive replies until weeks after submitting their resignations 901 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing to lose (except, perhaps, strike benefits) by being a little behind in their dues. 32 Further, I assume, without deciding, that if the Union had received only one or two copies of the Gazzoli letter, which specified the Interna- tional constitutional provisions about resignation and averred that all dues and other obligations had been paid, the Union would have been justified in assuming that the employee signers were in fact fully apprised of the con- stitutional restrictions on resignation and of their finan- cial obligations. However, the employees' letters and conduct as a whole put the Union on notice that many or all of the employees were not in fact so apprised. Thus, the fact that all but I of the 14 resignation letters consisted of a Gazzoli letter indicated that this was really a form letter with details which the signatory employees did not necessarily understand. Moreover, the Union must have been further alerted to the likelihood of con- fusion by the dues-delinquent status of almost half of the employees who signed the Gazzoli letter stating that they were paid up, the fact that the post-strike dues re- ceipts issued by the Union's computer misstated the month during all periods material here, the fact that the last checked-off dues payments were too high (see supra, fn. 32), the fact that one employee (Phillips) was paid up when his resignation was mailed but delinquent when it was received, the possibility that the employees might regard themselves as paid up if they had paid dues for the last complete month when they were members, 33 the fact that all of them had been receiving full strike bene- fits regardless of any alleged dues delinquency, 3 4 and the impossibility of ascertaining from the International con- stitution or the Local's bylaws the amount of dues owed during the strike. Moreover, all the purported resignees returned to work long before the expiration of the 30- day waiting period, including at least two employees- Ralph Gregory Hueffmeier and Ferdinand Trost-who had seen copies of the International constitution calling for such a period. Under these circumstances, I conclude that the Union failed to meet the notice standards when it failed to advise any of the employees how much they owed in dues and failed to advise any of them of the 30- 32 At the time the Union received these eight employees' purported resignations, Bergman was 3 months in arrears and the others (except perhaps Thomas) were I month in arrears. None but Bergman and, per- haps, Thomas would have been in arrears if the Local had complied with the requirements in art. Xll, sec. 4, of the International constitution that I month's advance dues be deducted from the first payment of strike benefits so as to maintain members' good standing. Moreover, because ac- cording to the Union's internal records the April dues were $12, the dues checked off by the Company in March for April were too high by $5 to $8. as Ferdinand Trost credibly testified that, about a week before he re- signed, Metz told him that he did not have to worry about paying the dues until the end of the month. Employee Loveless credibly testified that, in late April, Metz said that the employees would not have to worry about paying dues "till after the first of the month .. . as long as [they were] paid by the end of the month." Pruett, a clerical employee of the Union, credibly testified that, although a member normally had to be paid through the current month in order to obtain a withdrawal card, she could backdate it 90 days if he had not worked in the industry during this period. S4 As previously noted, art. XVI, sec. 7, of the Local bylaws renders ineligible for membership privileges, including strike benefits, an employ- ee who has failed to pay "fines, assessments or other charges . . . on or before the first business day of the month following the assessment of such charges." day waiting period until more than 30 days after they began to work behind the picket line. For this reason, I find that the restrictions on resignation were ineffective as to any of these employees. Accordingly, I further find at this point that the Union violated Section 8(b)(l)(A) by fining employees Kerry Bahr, Richard Crenshaw, Sr., and James William Thomas for working behind the picket line on and after May 18; by fining employee Steven Bergman for working behind the picket line on and after July 18; by fining employee Richard Crenshaw, Jr., for working behind the picket line; by fining employ- ee Jessie Hatchet for working behind the picket line on and after May 24; by fining employee Nathanial Phillips for working behind the picket line on and after June 2; and by fining employee James Wieberg for working behind the picket line on and after May 19. In any event, the Union's conduct in fining employees for working behind the picket line after their resignations had become effective under the Union's own rules shows that the constitutional restrictions on resignation were not a consideration in the Union's decision to impose any of the fines. Accordingly, the application of such restric- tions is not controlling. General Teamsters, Chauffeurs and Helpers Local Union No. 298 (Schumacher Electric Corporation), 236 NLRB 428, 430-431, fn. 14 (1978). e. Validity of restrictions on right to resign Finally, the General Counsel and counsel for the Charging Parties contend that, at least under the circum- stances of this case, the Union's restrictions on the right to resign should be disregarded because they are alleged- ly unreasonable. This contention calls for an inquiry into the legitimacy of the union interest vindicated by the rule and the extent to which any policy of the Act may be violated. Ex-Cell-O, supra, 227 NLRB at 1050. As to the latter consideration, application of the resignation re- strictions in the instant case would curtail these employ- ees' statutory right to abandon the strike, a right not irre- vocably waived by the fact that they may well have voted for the strike and that at the beginning of the strike, none of them was still subject to a union-shop clause. Ex-Cell-O, supra, at 1050. Although the Union has never specifically contended that these resignation restrictions would assist it in collecting dues arrearages, the General Counsel's brief addresses this contention, and disputes it on the ground that resigning from the Union would not relieve the employee from past finan- cial obligations. Standing alone, the considerations ad- vanced by the General Counsel would not necessarily render this union financial interest irrelevant, because as a practical matter it would be hard for the Union to obtain from a dissatisfied exmember unsecured arrearages which would likely be too small to warrant legal pro- ceedings (see supra, fn. 32). e3 However, the issue in the instant case is not whether the Union can for a limited period validly require purported resignees to obey, until they pay dues arrearages, such relatively nonmonetary es To the extent indicated in the text, I do not necessarily agree with the comments of Administrative Law Judge Jerrold H. Shapiro, on which the Board declined to pass, in General Teamsters Local 439 (Loomis Courier Service, Inc.), 237 NLRB 220 (1978). 902 MISCELLANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610 internal union requirements as (for example) buying only clothes with a union label. Rather, the issue is whether the Union can effectively forbid purported resignees to work for the Company until their dues arrearages are paid, even though their failure to accept such employ- ment may make it difficult or impossible to pay the ar- rearages. Moreover, the Union's rules provide that monthly dues obligations continue to accrue until the date when all dues are paid-in other words, the size of the arrearages increases with the duration of the prohibi- tion on working for the Company. Furthermore, al- though the International constitution and the Union's bylaws state that members more than 3 months in arrears are automatically suspended, these documents are at least open to the interpretation that they bind all purported re- signees until arrearages are paid up, without any limit as to duration or as to the total amount of arrearages. As to the 30-day waiting period, at the hearing union counsel contended that its purpose was to enable the Union to determine whether the employee's resignation had complied with all union requirements, and that an employee would be required to abide by union rules for a maximum of 30 days, rather than invariably for a full 30 days, after submitting a procedurally proper resigna- tion. As so interpreted, the 30-day requirement would be invalid as overly vague. See National Association of Broadcast Employees and Technicians, Local 531 (Skate- board Production), 245 NLRB 638 (1979). The Union's brief makes no reference to this alleged purpose, which, as pointed out in the General Counsel's excellent brief, is belied by the statement in the letters sent to all of the resignees that the resignation would not be effective until "the later of the 30th day after you submitted your resig- nation or the date you pay all dues, assessments, fines, and other obligations owed."3 6 The Union's post-hearing brief defends the 30-day waiting period, which it appar- ently now regards as an absolute rather than as a maxi- mum period, on the ground that it affords the Union the opportunity to induce the employees to change their minds about working behind the picket line. There is no evidence aside from the Union's post-hearing brief that the 30-day waiting period was established for this reason; this post-hearing explanation is difficult to reconcile with contentions which the Union advanced at the hearing; 3 7 s6 The General Counsel also contends that the Union's computeriza- tion of its dues records renders unnecessary and excessive a period of 30 days to ascertain whether the employee owes any money. In the instant case, the limitations built into the computer made it harder, rather than easier, for the Union to determine whether the employee's dues were paid up. However, a union claim of good-faith belief that the employees were dues-delinquent cannot rest upon misleading entries made by the Union in its own records, particularly in view of the Union's inaction after Williams obtained a union concession that he in fact owed nothing. Jackson Sportswear. Corporaotion, 211 NLRB 891, 902 (1974) s7 At the outset of the hearing, union counsel took the position that the constitutional conditions for resigning are binding "even in a strike situation as well as any other situation"; whereas the Union's present ex- planation for the 30-day period has little if any relevance to nonstrike sit- uations. Moreover, before the General Counsel rested his case, union counsel indicated on the record that a purported resignee might be free to cross the picket line after the Union had ascertained that he was paid up in his dues, even though the Union had made this determination within the 30-day period. and there is virtually no evidence that any attempts, other than the fines, were ever made to induce any of these 18 employees to change their minds. 38 Moreover, 30 days appears to be a period longer than necessary to afford the Union a reasonable opportunity to induce the employee to change his mind about working behind the picket line, particularly because honoring the employee's resignation would not deprive the Union of either the right or the opportunity to continue to urge the employ- ee to rejoin the strike."9 In view of the foregoing considerations, I conclude that, in the circumstances of this case, any legitimate union interest served by the 30-day period is outweighed by its curtailment of the employees' statutory right to work behind the picket line. In short, I find that, under the circumstances of this case, the Union violated Sec- tion 8(b)(1)(A) by fining the 18 claimants for working behind the picket line after the Union had received their resignations even assuming that the Union had given all of them timely and adequate notice of the amount of dues owed and the existence of the 30-day waiting period. Accordingly, I need not and do not consider the contention of the General Counsel and the charging par- ties that the Union's restrictions on the right to resign are unreasonable as a matter of law during a strike situation. Cf. N.L.R.B. v. Machinists Local 1327. International Asso- ciation of Machinists and Aerospace Workers [Dalmo Victor], 608 F.2d 1219 (9th Cir. 1979). 2. The fines at least ostensibly based on admittedly preresignation conduct I have found that the Union violated Section 8(b)(1)(A) by fining the Hueffmeiers, Stevener, and Fer- dinand Trost for the admitted reason that, after effective- ly resigning, they worked behind the picket line. It fol- lows that union fines really motivated by such postresig- nation conduct violated Section 8(b)(1)(A) even assum- ing that the tendered reason was preresignation conduct for which they could be lawfully fined Painters Local Union No. 1555 (Alaska Constructors, Inc.), 241 NLRB 741 (1979); Local 294, International Brotherhood of Team- sters (Bohl Contracting), 193 NLRB 920, 924-926 (1971), enfd. 470 F.2d 57 (2d Cir. 1972), I agree with the General Counsel that the fines im- posed on these four employees on the stated basis of preresignation conduct were unlawful because they were really motivated by these employees' return to work during the strike. Employees Caldwell and Dalton had been named in the same charges, and charged with the same conduct, as employee Ralph Gregory Hueffmeier. However, Union President Metz told Caldwell that the charges against him had been dropped because he had stayed out on strike rather than crossing the picket line. 38 The only evidence of any such attempts is the Union's minutes of its May 27 and June 12 and 30 executive board meetings, which minutes were offered and received for the purpose of showing what happened at the meeting. These minutes state that. at these meetings, various individ- uals stated that they had unsuccessfully urged Alexander, Kenneth Smith, and Terence Trost not to cross the picket line "9 However, I do not necessarily agree with Administrative Law Judge Shapiro's comments in Loomis (see supra. fn. 35) to the extent that they may regard such an opportunity as a wholly illegitimate interest. 903 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Similarly, after it transpired at Dalton's intraunion hear- ing that he had not worked behind the picket line, and after Dalton had promised that he would not do so in the future, the charges against Dalton were dropped at the behest of picket captain/negotiating committeeman Ralph Hatchet. This action was acquiesced in by the union executive board, picket captain/negotiating committeeman/steward Arnold Brown, and picket captain/negotiating committeeman/chief steward Grin- ston, even though no evidence at all had been presented about Dalton's remarks on the picket line. Moreover, as to Ralph Gregory Hueffmeier, there are unexplained dis- crepancies between the findings and penalty against him as reflected by the charges against him, the minutes of his intraunion hearing, the May 26 judgment and deci- sion against him, and the July 19 amended judgment. Likewise, as to Herman Hueffmeier, Stevener, and Ferdi- nand Trost there are unexplained discrepancies between the minutes of their May 24 intraunion hearing, the May 26 judgment and decision against each, and the July 19 amended judgment against each. Additionally, there are unexplained discrepancies between Grinston's representa- tions to the executive board and his testimony before me about Ferdinand Trost's conduct. 40 I regard the forego- ing evidence as preponderantly establishing that the fines imposed against these four employees on the tendered ground of preresignation conduct were really imposed because of their largely postresignation conduct in work- ing behind the picket line. Further, I regard as probative corroborating evidence picket captain/negotiating committeeman/steward Arnold Brown's statement to employee Herman Hueff- meier that such was indeed the reason for the charges; picket captain/negotiating committeeman Hatchet's state- ment to employee Ferdinand Trost that the charges were intended merely to "scare" him to "keep [his] mouth shut"; and picket captain/negotiating committee- man/steward Roland Smith's comment to Herman Hueffmeier, when he crossed the picket line, "You know you're in trouble now." In finding that such statements constituted evidence of the Union's motive, I rely on Union President Metz' statement to the membership that picket captains were supposed to keep the peace on the line and report events there, and on the evidence that Hatchet initiated the dropping of the charge against Dalton after it transpired that he was honoring the picket line. For the foregoing reasons, I need not and do not de- termine at this point whether the Union would have vio- lated the Act by fining these four employees for the rea- sons advanced by the Union.4t 40 Although difficult to reconcile factually with the May 16 date on which Ferdinand Trost crossed the picket line, Orinston's testimony that he decided to write the April 29 charges against Trost after he decided to cross the picket line constitutes evidence of the motive behind Grinston's subsequent conduct in connection with the Trost charges. 4 Such a determination would appear to put at issue whether the al- legedly protected character of the employees' conduct should be assessed on the basis of what the employees really did, or on the basis of what the executive board thought they had done after a hearing where the accused employees had failed to take advantage of an opportunity to appear. Cf N.L.R.B. v. Burnup & Sims, 379 U.S 21 (1964). 3. The preferring and processing of the charges against the employees who were and who were not fined a. The charges admittedly based on working behind the picket line Respondent's answer to the complaint admits that the Union processed the 18 charges admittedly based on working behind the picket line. As the Union does not appear to dispute, my finding that the Union violated Section 8(b)(1)(A) by imposing discipline pursuant to such charges calls for the conclusion that the Union also violated Section 8(b)(1)(A) by processing the charges. Schumacher, supra, 236 NLRB 428. The General Counsel contends that the Union violated Section 8(b)(1)(A) by preferring these charges, on the ground that the individuals who preferred them were union agents. International Alliance of Threatrical Stage Employees (RKO General), 223 NLRB 959 (1976), found that a union violated Section 8(b)(1)(A) where a rank- and-file member instituted a disciplinary proceeding on which a scheduled hearing had been postponed pending final disposition of the unfair labor practice proceeding. In any event, I agree with the General Counsel that the charges herein were filed or instigated by union agents. Thus, the charge against Herman Hueffmeier that he had worked behind the picket line was signed by, inter alia, employee Earl Alexander, who credibly testified that an unidentified "strike captain" and Union President Metz told him to sign. 42 The Union's answer concedes that Metz is an agent of the Union. Moreover, all the charges against these 18 employees were signed by either picket captain/negotiating com- mitteeman/chief steward Grinston, picket captains/- negotiating committeemen/stewards Roland Smith and Arnold Brown, or picket captain/negotiating committe- man Ralph Hatchet. I agree that the preferring of charges based on employees' conduct in crossing the picket line constituted action within the scope of their authority as picket captains. I note, moreover, the local bylaws' reference (art. XX, sec. 4) to shop stewards and others as "representatives of this organization." Schu- macher, supra, 236 NLRB 428, and RKO, supra, 223 NLRB 959, call for rejection of the union's contention that the conduct of these picket captains must be consid- ered as the conduct of ordinary members and not bind- ing on the Union. Accordingly, I find that the Union violated Section 8(b)(1)(A) by preferring and processing charges against all of these 18 employees on the admitted ground that they worked behind the picket line. b. The charges ostensibly based on admittedly preresignation conduct My prior finding that the fines ostensibly imposed for admittedly preresignation conduct were really imposed for the mostly unlawful reason of working behind the picket line calls for the finding that the Union violated 'Z This Finding is based on Alexander's testimony. For demeanor rea- sons. I do not accept Metz' denial. 904 MISCELLANEOUS DRIVERS AND HELPERS, LOCAL UNION NO 610 Section 8(b)(1)(A) by its action, admitted in the answer to the complaint, in processing such charges against the Hueffmeiers, Stevener, and Ferdinand Trost. Schu- macher, supra, 236 NLRB 428. The General Counsel further alleges that the Union violated Section 8(b)(l)(A) in connection with the prefer- ring of these charges and the preferring and processing of the eventually dropped charges against Caldwell and Dalton. The April charges against Ralph Gregory Hueff- meier, Caldwell, and Dalton were preferred by, inter alta, picket captain/negotiating committeeman Ralph Hatchet, and were signed by other members at the re- quest of picket captain/negotiating committeeman/chief steward Grinston. The April charges against Herman Hueffmeier, Stevener, and Ferdinand Trost were signed by Grinston, Hatchet, and rank-and-file member Lemp. For the reasons set forth supra, section II,D,3,a, I agree with the General Counsel that the Union is answerable for such preferring of charges against members based upon picket-line conduct. However, except as to Ferdinand Trost, I disagree with the contention that such union action violated Sec- tion 8(b)(l)(A). At least on their face, the written charges arguably encompassed a description of conduct for which a member could at least under some circum- stances be lawfully fined; namely, abusing other mem- bers; trying to talk other members into crossing the picket line; and, in management's presence, alleging that the speakers would return to work without an increase and that a union representative was dishonest. Assuming that the Union could not lawfully have fined Herman Hueffmeier and Stevener for making such remarks to fellow employees, such remarks in management's pres- ence could at least arguably be lawfully punished as a public display of lack of unity during the strike. Cf. Allis- Chalmers. supra, 388 U.S. at 181-182; Kuebler v. Cleve- land Lithographers and Photoengravers Union Local 24-P, 473 F.2d 359 (6th Cir. 1973); Leonard v. M.IT. Employ- ees' Union, 225 F.S. 937, 939-940 (D.C. Mass. 1964). To be sure, the General Counsel may be correct in urging that the charged members could not have been lawfully disciplined for their conduct during the incidents in- volved in the charges, and that the actual discipline of the four employees found guilty of the charges would have been unlawful even if wholly unrelated to their sub- sequent action in working behind the picket line (see supra, fn. 41). However, I do not read the statute or the relevant precedents as calling for an unfair labor practice finding against a union merely because it filed facially unexceptionable charges on the expressed basis of factual allegations shown during an NLRB hearing to be inaccu- rate in respects critical to the legality of any consequent discipline. In the instant case, the charges against two of the employees were eventually dropped, and the remain- ing charges were sustained by wholly ulterior reasons. Cf. Local I00, Transport Workers of America (Liberty Coaches, Inc.), 230 NLRB 536 (1977).43 43 As to whether the Act was violated by the preferring of the April 29 charges, I regard as immaterial the fact that the executive board's amended judgments in June and July 1978 do not allege that the conduct in question icc urred in management's presence; for the charges were not signed bh any tmemnber of the executive board Further, because the April Nor do I agree with the General Counsel that the Union violated Section 8(b)(1)(A) by processing the eventually dropped charges against members Caldwell and Dalton. Rather, I concude that these charges were processed because the Union wanted to keep Caldwell and Dalton from working behind the picket line, a pur- pose toward which the Union could lawfully direct disci- pline in view of Caldwell's and Dalton's continued union membership. That this union motive had developed before the May 24 hearing on these charges is shown by Union Business Representative Metz' May 17 statement to Ralph Gregory Hueffmeier not to worry about the charges because the Union was more worried about the people that had crossed the picket line. Moreover, during or shortly after the hearing the charges against Caldwell and Dalton were dropped because they were not working behind the picket line. However, I do agree with the General Counsel that the Union violated Section 8(b)(1)(A) when it preferred the internal charges against Ferdinand Trost alleging that Trost had urged picket captain/negotiating committee- man Ralph Hatchet to try to induce other employees to vote for acceptance of the Company's last contract offer. Section 8(b)(1)(A) forbids internal union discipline for such conduct, at least where, as here, there is no conten- tion that it occurred in management's presence. Interna- tional Union of Operating Engineers Local 400 (Hilde Con- struction Company), 225 NLRB 596, 601-602 (1976). Ac- cordingly, the Union violated Section 8(b)(l)(A) by pre- ferring such charges. Schumacher, supra, 236 NLRB 428. CONCL USIONS OF LAW 1. The Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(11) of the Act. 3. The Union has violated Section 8(b)(1)(A) by the following conduct: (a) Preferring and processing charges against the fol- lowing employees, and imposing the following discipline on them: (I) Fining Earl Alexander and James Williams for working behind the picket line on and after May 27, 1978. (2) Fining Kerry Bahr, Richard Crenshaw, Sr., Albert Stevener, and James William Thomas for working behind the picket line on and after May 18, 1978. (3) Fining Steven Bergman for working behind the picket line on and after July 18, 1978. (4) Fining Richard Crehshaw, Jr., for working behind the picket line. (5) Fining Jessie Hatchet and Terence Trost for work- ing behind the picket line on and after May 24, 1978. (6) Fining Jerry Loveless for working behind the picket line on and after June 27, 1978. 29 charges were prepared by a semililerate member and were signed by him and two other employee members, I give little weight to the omis- sion from the charges of refernce to a provision in the Union's bylaws forbidding members "knowingly" to give information to a struck employ- er which tends to support him against the Union 905 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (7) Fining Nathanial Phillips for working behind the picket line on and after June 2, 1978. (8) Fining Kenneth Smith for working behind the picket line on and after May 16, 1978. (9) Fining James Wieberg for working behind the picket line on and after May 19, 1978. (10) Fining Albert Ziegelmeyer for working behind the picket line on and after August 18, 1978. (b) Processing a charge dated April 7, 1978, against Ralph Gregory Hueffmeier, and imposing a fine on him allegedly based on that charge. (c) Processing a charge dated April 29, 1978, against Herman Hueffmeier and Albert Stevener, and imposing a fine on him allegedly based on that charge. (d) Preferring and processing a charge dated April 29, 1978, against Ferdinand Trost, and imposing a fine on him allegedly based on that charge. (e) Preferring charges in May 1978 against Herman Hueffmeier, Ralph Gregory Hueffmeier, Albert Ste- vener, and Ferdinand Trost; processing such charges; and imposing the following discipline on them based on such charges: (1) Fining Herman Hueffmeier and Ralph Gregory Hueffmeier for working behind the picket line on and after May 24, 1978. (2) Fining Albert Stevener and Ferdinand Trost for working behind the picket line on and after May 18, 1978. 4. The foregoing unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Union has not violated the Act by the follow- ing conduct: (a) Fining employees Earl Alexander and James Wil- liams for working behind the picket line on May 26, 1978; fining employees Kerry Bahr, Richard Crenshaw, Sr., Albert Stevener, James William Thomas, and Ferdi- nand Trost for working behind the picket line on and before May 17, 1978; fining Steven Bergman for working behind the picket line on and before July 17, 1978; fining Jessie Hatchet and Terence Trost for working behind the picket line on May 23, 1978; fining Herman Hueffmeier and Ralph Gregory Hueffmeier for working behind the picket line on and before May 23, 1978; fining Jerry Loveless for working behind the picket line on June 26, 1978; fining Nathanial Phillips for working behind the picket line on and before June 1, 1978; fining Kenneth Smith for working behind the picket line on May 15; fining James Wieberg for working behind the picket line on and before May 18, 1978; and fining employee Albert Ziegelmeyer for working behind the picket line on and before August 17, 1978, (b) Preferring and processing charges against James Caldwell and Ricky Dalton. (c) Preferring charges in April 1978 against Herman Hueffmeier, Ralph Gregory Hueffmeier, and Albert Ste- vener. THE REMEDY Having found that the Union has engaged in certain unfair labor practices, I shall recommend that the Union be required to cease and desist therefrom, and from like or related conduct. Affirmatively, the Union will be re- quired to rescind the unlawfully imposed fines and the unlawfully imposed portions of the fines, expunge any reference thereto from its files and records, immediately notify the employees of such action, and reimburse them for any part thereof which may have been collected, with interest thereon as prescribed in Florida Steel Corpo- ration, 231 NLRB 651 (1977). 4 4 In addition, the Union will be required to post appropriate notices. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended Order: ORDER45 The Respondent, Miscellaneous Drivers and Helpers, Local Union No. 610, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents. and representa- tives, shall: 1. Cease and desist from: (a) Restraining or coercing employees in the exercise of their rights under Section 7 of the Act by preferring and processing internal charges based on post-resignation conduct, by imposing fines based on such charges, and by preferring charges against members based on their ef- forts to persuade other members, outside management's presence, to change their minds about whether to vote for acceptance of their employer's contract offer. (b) In any like or related manner restraining or coerc- ing employees in the exercise of their rights under Sec- tion 7 of the Act. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Cancel, withdraw, and rescind the April 1978 charges which were filed against Herman Hueffmeier, Ralph Gregory Hueffmeier. Albert Stevener, and Ferdi- nand Trost; rescind the fines levied against them alleged- ly based on such charges: rescind the unlawfully imposed portion of the fines against them based upon the May 1978 charges filed against them; expunge from Respond- ent's files any reference to the April 1978 charges and the unlawfully imposed portions of the fines against them based upon the May 1978 charges; and immediately notify such employees by letter that such action has been taken. (b) Cancel, withdraw, and rescind the charges which were filed against Richard Crenshaw, Jr.; rescind the fines levied against him; expunge from Respondent's files and records any reference to such charges and fines; and immediately notify him by letter that such action has been taken. (c) Rescind the unlawfully imposed portions of the fines levied against Earl Alexander, Kerry Bahr, Steven 44 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). 4' 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 ail objections thereto shall be deemed waived for all purposes. 906 MISCELLANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610 Bergman, Richard Crenshaw, Sr,, Jessie Hatchet, Jerry Loveless, Nathanial Phillips, Kenneth Smith, James Wil- liam Thomas, Terence Trost, James Wieberg, James Wil- liams, and Albert Ziegelmeyer; expunge from Respond- ent's files and records any reference thereto; and immedi- ately notify such employees by letter that such action has been taken. (d) Refund to all the foregoing employees any money they may have paid as a result of the illegal fines or il- legal portions of fines, in the manner set forth in that part of this Decision entitled "The Remedy." (e) Post at its business offices and meeting halls copies of the attached notice marked "Appendix." 4 6 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's representative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 days there- after, in conspicuous places, including all places where notices to members of Respondent are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or cov- ered by any other material. (f) Furnish the Regional Director for Region 14 signed copies of the aforesaid notice, in the number designated by the Regional Director, for posting by Browning- Ferris Corporation, if it is willing, at places where it cus- tomarily posts notices to employees. (g) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint be dismissed to the extent that it encompasses the conduct found not unlawful in Conclusion of Law 5. 46 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAl LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had a chance to present their evidence, it has been found that we violated the law in certain ways. We have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT prefer or process internal union charges against former members, or fine them, for working behind a picket line after they have validly resigned their union membership. WE WILL NOT prefer charges against members based on efforts to persuade other members, outside management's presence, to change their minds about whether to vote for acceptance of their em- ployer's contract offer. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of their rights under the Act. WE WILL cancel, withdraw, and rescind the April 1978 internal union charges filed against Herman Hueffmeier, Ralph Gregory Hueffmeier, and Ferdinand Trost; and the internal union charges filed against Richard Crenshaw, Jr. WE WILL re- scind the fines based on such charges, and remove all references to such charges and fines from our records. WE WILL tell these employees by letter that we have done so. WE WILL rescind the unlawfully imposed por- tions of the fines levied against Herman Hueffmeier, Ralph Gregory Hueffmeier, Albert Stevener, and Ferdinand Trost under the May 1978 internal union charges filed against them. WE WILL rescind the un- lawfully imposed portions of the fines levied against Earl Alexander, Kerry Bahr, Steven Bergman, Richard Crenshaw, Sr., Jessie Hatchet, Jerry Love- less, Nathanial Phillips, Kenneth Smith, James Wil- liam Thomas, Terence Trost, James Wieberg, James Williams, and Albert Ziegelmeyer. WE WILL remove all references to such unlawfully imposed portions of their fines from our records. WE WILL tell these employees by letter that we have done so. WE WILL refund to all the foregoing employees, with interest, any money they may have paid as a result of the illegal fines or illegal portion of fines. MISCELLANEOUS DRIVERS AND HELPERS, LOCAL UNION NO. 610, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA 907