Colton Mfg., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Pottery & Allied Workers, AFL-CIO (Colton Manufacturing, Inc.) and Ted Benic. Case 31-CB-3315 January 26, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On September 16, 1980, Administrative Law Judge Timothy D. Nelson issued the attached De- cision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in opposition to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his 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 complaint be, and it hereby is, dismissed in its entirety. ' In sec IV. pars 9 and 12, of his Decision, the Administrative la\ Judge refers to sec. 5 of art XXIII f the Unrlilon's cotilutiutloll It is ap- parent that this reference should he to sec DECISION STATEMENT OF T1HIF. CASE TIMOTHY D. NEI.SON, Administrative Law Judge: I heard this case at San Bernardino, California, on Febru- ary 14, 1980. It arose as follows: Fedor "Ted" Benic, an individual, filed original and amended unfair labor prac- tice charges under Section 8(b)(1)(A) of the National Labor Relations Act, as amended, on, respectively, July 14 and September 17, 1979,1 with the Regional Director for Region 31 of the National Labor Relations Board against International Brotherhood of Pottery & Allied Workers, AFL-CIO, herein called the Union. Following an investigation, the Regional Director issued a com- plaint and an amendment to complaint against the Union on, respectively, September 28 and January 23, 1980. The complaint as amended alleges in substance that the Union violated Section 8(b)(1)(A) of the Act by re- fusing to pay accrued strike benefits to said Benic and to two other employees, Leslie Vavrick and Milton Obar, All dates are in 1979 unless otherwise specified. 254 NLRB No. 35 because said employees had, after resigning from the Union, returned to work at their employer, Colton Man- ufacturing, Inc., herein called the Employer, while the Union's local affiliate2 was still conducting a strike against the Employer. The Union and the Board's General Counsel appeared through counsel at the hearing and all parties were given full opportunity to appear, to present evidence and argu- ments, and to submit post-trial briefs. Timely briefs were filed by the Union and the General Counsel. I have given them careful consideration. 1. INTRODUCTORY SUMMARY AND STATEMENT OF THE ISSUES Briefly stated, the undisputed facts recited in the next section show that the Union withheld certain strike bene- fit payments from three individual strikers who had re- signed their union membership and returned to work for the struck employer after initially participating in the strike. By virtue of that initial strike participation, the three individuals had become eligible to receive 2 weeks' strike benefit payments, but the scheduled "payday" for that increment of their strike participation did not fall until after their resignations and return to work. The General Counsel contends, in substance, that the 3 individuals had "accrued" the benefits which were with- held by the Union and that the withholding was a "pen- alty" for strikebreaking, thus making the withholding tantamount to an attempt by the Union to impose post- resignation fines on strikebreakers-discipline which is proscribed by Section 8(b)(l)(A) of the Act as construed by the Supreme Court in two lead cases in this legal area. 3 The Union contends, in substance, that its withholding of the strike benefit payments was done pursuant to an evenhanded strike benefit payment policy which pro- scribes payments of benefits to otherwise eligible individ- uals when they no longer have need for such benefits due to their having obtained regular employment during the course of the strike; and, accordingly, the withhold- ing was in sense a "penalty" for strikebreaking. With the main factual elements and the parties' respec- tive contentions thus summarized, there remains a com- plex of fact/law questions to be resolved which may be stated broadly as follows: I. Was the withholding of strike benefits punitive in character and linked to the post-resignation conduct of the three employees in returning to work for the struck employer? 2. Was the withholding simply the result of the appli- cation of an evenhanded internal union policy itself nec- essary for the vindication of legitimate union interests which are not in conflict with overriding Federal labor policy? l ,ocal Uniuon No 226, IntLernationial rotherhood of Pottery & Allied Workers, AFL-CIO (Local 226) :' Hooster Lodge No. 405. International ,4sociatlon of Machinists and Anspuace Workrs. ,IA1L-CI0 [Boeing Comnpany] v L.R B.. 412 U S 84 (1973)1 .N'..R B.v (Granit Sat Joint Board. Textile Workers Union of i4Anriaa. oluol 1029.1-C1. (0 [lnternational Paper Box Machine Co], 409 Li S 213 (172) 696 POTTERY WORKERS If the first question is answered yes, then it would remain to determine in this factually unprecedented set- ting whether such a punitive withholding of "accrued" strike benefits violates Section 8(b)(l)(A) of the Act. If the second question is answered yes, the General Counsel appears to concede that the principal theory un- derlying the issuance of the complaint must be rejected.4 On brief, however, the General Counsel suggests alterna- tive or supplementary grounds for sustaining the com- plaint-that the withholding of benefits was unlawfully linked to the fact that Benic, Vavrick, and Obar were no longer members of the Union; and/or that the Union failed in its duty of fair representation by failing ade- quately to publicize the criteria which it employed in de- termining whether or not to issue strike benefits to par- ticular claimants. It is my ultimate conclusion, for reasons set forth in the analysis section, infra, that the complaint may not be sustained on any of the grounds urged by the General Counsel. FINDINGS OF: FACT The record consists of the pretrial pleadings, as amended at hearing, certain narrative factual summaries stipulated to by the parties, documentary exhibits (the Union's International constitution and certain Interna- tional executive board minutes), and the sworn testimony of the Union's second vice president and west coast di- rector, Samuel L. Fullerton. From that undisputed record, I find as follows: The Employer, a California corporation, manufactures what the complaint refers to as "sanitary ware" from a plant at Colton, California.5 The Union and Local 226 were engaged in an economic strike against the Employ- er between on or about February 1 and June 4. On that latter date, the strike was settled and striking employees who had not already abandoned the strike returned to work. Ted Benic, Leslie Vavrick, and Milton Obar were em- ployees of the Employer and were members in good standing of Local 226 when the strike began. They each resigned their membership and returned to work at the struck plant on dates between May 16 and 24 after having earlier participated in the strike. The Union maintains a strike benefit treasury for strik- ing members and, subject to some qualifications discussed below, pays to each striking member $50 per week. More specifically, the Union's International constitution contains the following provisions governing strike benefit payments: 4 On brief, the General Counsel acknowledges, albeit qualifiedly " if the withholding] action is viewed merely as [the Union'sl enforcement of a properly adopted internal rule, which may have had in this ilstance an incidental negative impact on former members, such action may. under certain circumstances, not be unlawful " (GC. br., p 6.) 5 The Employer annually sells and ships goods or services alued in excess of $50.000 directly to customers outside California arid derives more than 500.00) in gross revenues from its Colton operation ARTICLE XXIII Strikes Section 1. The Brotherhood shall lend financial support for all strikes that are authorized by fifty- one percent (51) vote of the members affected and by the Executive Board. Section 2. Where a strike has been declared, it shall require a majority of those voting to declare the strike off where the matter is referred back to the members for a vote by the Contract Policy Committee. Section 3. Should a lockout be forced upon the members of a Local Union without the members having had an opportunity to vote to strike, said members shall receive the financial support of the Brotherhood. Section 4. Strike Benefits shall be payable to eli- gible members of the Brotherhood commencing the week after the seventh (7th) day of the strike and continuing each week thereafter during which eligi- ble members are on strike. Such benefits will be paid only from the Strike Benefit Fund. Section 5. Any member of the Brotherhood fail- ing to vote on the question of whether a strike should be called, where such a vote is taken, unless excused by his or her Local, shall not be eligible for strike pay during the first week of a strike. Section 6. When a strike has been approved by fifty-one percent (51) of the members affected and the Executive Board, the sum of Fifty Dollars ($50.00) a week shall be paid to each member enti- tled to the benefits during the strike. A new or rein- stated member must be a dues paying member to be eligible to draw strike benefits. A member on strike shall be permitted to earn an amount not to exceed Thirty-Five Dollars ($35.00) per week in excess of the amount of strike pay. Members working in reg- ular positions shall not be entitled to strike pay. The strike benefit a member shall receive shall be re- duced dollar for dollar for each dollar earned over Thirty-Five Dollars ($35.00) per week. Such bene- fits will be paid only from the Strike Benefit Fund. Section 7. Any member refusing to take his regu- lar turn picketing during an authorized strike shall not be entitled to any strike benefits. Section 8. Members of a Local Union on strike must report once a week to proper officials or offi- cers of the Local Union to be entitled to strike benefit, unless excused for valid reasons. Section 9. When a strike is duly authorized the corresponding secretary of the Local Union shall notify the International Secretary-Treasurer at least once a month how said strike is progressing. As specified in section 4 of the Union's constitution, no benefits are payable to strikers for the first 7 days of a strike. Once the Colton strike went beyond the initial 7- day period, however, the following strike benefit pay- ment practice operated until the strike settlement: Every 2 weeks, Local 226 would certify a list of eligible strike 697 DECISIONS OF NA TIONAL LABOR RELATIONS BOARD benefit recipients to the Union and the latter would, in turn, forward a single check in the gross amount neces- sary to pay each eligible striker 2 weeks' worth of bene- fits. Local 226 would then disburse strike fund moneys to each eligible striker. Because of the delays associated with the mechanical process of certifying a list to the Union and the transmittal back to Local 226 of a gross amount check, there was typically a lag of I or 2 weeks from the time that strikers had performed a given 2 weeks of strike participation and the time when they re- ceived a benefit check linked to that 2 weeks of partici- pation. Benic, Vavrick, and Obar had each engaged in requi- site strike participation during the weeks ending May 6 and 13. The strike benefit "payday" for those 2 weeks was May 29. In the interim, as noted above, all three had communicated effective membership resignations to the Union (or to Local 226), 6 and had returned to work, thereby abandoning the strike. The parties stipulated that the Union "withheld" from Benic, Vavrick, and Obar strike benefit payments for the final 2 weeks in which they participated in the strike before resigning their membership and returning to work in the struck plant. The record is otherwise silent as to the specific context in which the "withholding" of such benefits took place. Thus, it is not clear whether the three former members appeared on May 29 at Local 226 to demand a benefit check for the weeks ending May 6 and 13 and were denied the same, or whether any rea- sons were given to them by the Union or Local 226 in connection with such "withholding" however it was spe- cifically manifested. Nor is there other than circumstan- tial evidence bearing on the Union's actual motivation in withholding the benefit payments from the three former members. Additional facts pertaining to the Union's general poli- cies regarding strike benefit payments emerged from the undisputed testimony of Fullerton and from corrobora- tive documentation. Crediting Fullerton, the Union does not, in practice, make strike benefit payments to other- wise qualified members for every week of their participa- tion in the strike. Rather, as he explained, it has been the Union's established and applied policy since at least Jan- uary 21, 1977,7 to withhold further strike benefit pay- ments upon the settlement of a strike. In practice, due to the timelag between strike participation and the eventual strike benefit payments therefor, this means that even strikers who endured the entire strike normally will not receive benefit payments beyond those made on the last "payday" prior to the date on which a strike settlement is reached. Indeed, this practice-and its consequences- pertained when the Colton strike was eventually settled. As Fullerton explained, the philosophy underlying strike benefits payments is that they are intended to satisfy a e The parties stipulated that the resignations were valid and effective without specifying the particular resignation procedure employed. 7 On that date, the Union's International executive board convened in Pittsburgh, Pennsylvania, and adopted a "Strike Benefit Payment Policy" substantially in accord with the summary in the main text. On May 6, 1977, the executive board convened in Kansas City, Missouri, and ap- proved a "correction" of the Pittsburgh rule so that it would read that strike benefit payments would "terminate ... on the date of settlement of the strike." (Resp. Exhs. I and 2.) "need for an individual who in most cases has a family, and this is something to help him through this time." In fact, as explained by Fullerton, strikers may perform little or no actual strike "service" and still receive strike benefits. During the Colton strike, for example, strikers were excused from performing picket duty for various reasons, such as illness, and still received benefit pay- ments. 8 During strikes involving a substantial number of bargaining unit employees and where there are relatively few pickets needed at any given time to cover plant en- trances, strikers may perform picket duty or other strike service quite infrequently-perhaps once every 2 or 3 weeks. Those strikers would still receive the same bene- fits which would be received by their brethren at an- other struck plant where the exigencies of manpower and plant configuration might require more frequent picket duty. II. DISCUSSION, FURTHER FINDINGS, AND CONCI.USIONS A. First Principles Section 8(b)(l)(A) of the Act makes it unlawful for a union to "restrain or coerce . . . employees in the exer- cise of the rights guaranteed in section 7:9 Provided, That this paragraph shall not impair the right of a labor orga- nization to prescribe its own rules with respect to the ac- quisition or retention of membership therein .... " [Em- phasis supplied.] There is a tension between the affirmative proscrip- tions in Section 8(b)(1)(A) against union restraint and co- ercion of employees in the exercise of protected rights, and the rights retained by a union, as reflected in the proviso thereto, to make and enforce internal rules bind- ing on its membership. Thus, when a union imposes a fine against its members who work for an employer against whom the union has called a lawful strike, such disciplinary action, however coercive of an employee/ member's right under Section 7 to "refrain from" activi- ties supportive of the union, does not violate Section 8(b)(l)(A); but, rather, it falls within the ambit of permis- sible union actions vis-a-vis its members under the provi- so. N.L.R.B. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175, 195, 196 (1967). In reaching the conclusion in Allis-Chalmers, supra, that fines by a union against strikebreaker-members are privileged by the proviso to Section 8(b)(l) (A), the Court applied the general rule laid down earlier in Sco- field,t ° that: Section 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate Indeed, in some cases, according to Fullerton, Colton strikers simply failed to show up for scheduled picket duty and still received strike bene- fits U Sec. 7 of the Act guarantees the rights of employees "to form, join, or assist labor organizations . . . and . . the right to refrain from any or all such activities . " (Emphasis supplied.l It is this latter right, ie.. the right of employees to refrain from supporting the strike against the employer, which is implicated by the Union's actions herein, according to the General Counsel's theory i" Scofield v N.L.R.B.. 394 U.S. 423, 430 (1969) 698 POTTERY WORKERS union interest, impairs no policy Congress has im- bedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule. But, when an employee has lawfully resigned member- ship in the union before violating its internal rule, the union no longer retains the privilege under the proviso to impose discipline for breach of the rule. Therefore, post-resignation strikebreakers are immune from union discipline and the union's attempts to impose discipline in such cases violates Section 8(b)(l)(A). Granite State, supra, 409 U.S. at 217. B. Application to This Case The General Counsel would have me treat the Union's withholding of the strike benefits from Benic, Vavrick, and Obar as a form of disciplinary penalty which-either by conscious design or in practical effect-tends to re- strain employees in exercising their protected right to decide to abandon a strike called by the Union and to return to work. Applying the foregoing principles, the General Counsel maintains that, however permissible such a penalty might be if imposed by the Union against its strikebreaking members, the Union forfeited the right to impose such a penalty upon the three employees in- volved herein since they had resigned their membership before assuming the status of strikebreakers. If one accepts a preliminary set of factual assumptions inherent in the General Counsel's position-that the right to strike benefit payments "accrues" to employees as soon as they have satisifed strike "service" requirements, and that such accrued benefits will be paid unless the former striker breaks discipline and returns to work at the struck employer-then there is a strong appeal to the General Counsel's contentions herein, even in the ab- sence of strict factual precedent. 1 For it is clear from the Supreme Court cases discussed above that union dis- cipline directed against employees for engaging in pro- tected activity following their effective resignations from union membership is violative of Section 8(b)(1)(A). And I All parties agree that the Board has not decided a case squarely pre- senting the question which the General Counsel believes is raised herein. My research leads me to the same conclusion. Contrary to the General Counsel's argument, I do not find Communications Workers of .merica, AFL-CIO. Local 1127 (New York Telephone Company), 208 NLRB 258 (1974), to be instructive by analogy. There, the Board agreed with the Administrative Law Judge that the union's attempts to compel strike- breakers to repay strike benefits which they had received before aban- doning the strike violated Sec. 8(b)IXA). But this was found to be so without regard to whether or not the employees in question had resigned their membership before returning to work for the struck employer (some had and some had not). And the rationale used to reach that conclusion was that the strike was unprotected and, therefore, the union's resort to discipline (either by fines or attempts to recoup previously disbursed strike benefits) to coerce employees to stay on strike violated an overrid- ing public policy against strikes in violation of Sec. 8(d) of the Act. Ac- cordingly, CWA. Local 1127, supra. does not answer the question wheth- er or not Sec 8(b)Xl)A) is violated by a union's attempt to recoup previ- ously disbursed strike benefits from post-resignation strikebreakers under circumstances where the strike is lawful. The Board's more recent deci- sion in United Food and Commercial Workers International Union, AFL- CIO, and its Local 222 (Iowa Beef Processors and/or Farm Products, Inc.), 245 NLRB 1035 (1979), is not factually apposite in this case, but it con- tains commentary which is germane to the issues herein (see discussion below). it is not difficult to conclude, accepting as true the dual factual assumptions just mentioned, that the withholding of an "accrued" benefit in order to penalize a post-resig- nation strikebreaker has just as much coercive impact on that employee as would a union's clearly unlawful at- tempt to extract the same amount from the same employ- ee in the form of a disciplinary fine. From a "pocket- book" standpoint, the coercive effect of the former con- duct is at least the same as in the latter case. Accordingly, if there is record support for the conten- tion that the Union would have disbursed to Benic, Vav- rick, and Obar the 2 weeks' worth of strike benefits which became payable on May 29 but for their interven- ing choice to abandon the strike, there would be substan- tial grounds for finding a violation of Section 8(b)(1)(A), notwithstanding the absence of factual precedent. I con- clude, however, that the record does not support such a contention and that the dual factual assumptions underly- ing the General Counsel's central theory are not only without record support, but are indeed contradicted by substantial evidence in this record. Thus, I conclude, in essential agreement with the Union's contentions, that the withholding of the strike benefit payments from the three employees was not "dis- ciplinary"-that is, it was not punitively related to the fact that the three employees had returned to work for the struck employer. Rather, the record preponderates in favor of the view that the Union was simply following its undisputed policy of husbanding its strike treasury by limiting payments to those who had "need" for the bene- fits. I rely on the following factors in reaching the above factual conclusions: There is affirmative evidence from section 5 of the constitutional provisions quoted above that otherwise eligible employees will not receive strike benefit payments if they are receiving any substantial earnings from other employment during the strike. Thus, that section expressly excludes from eligibility for bene- fits persons who are either "in regular positions" or who independently earn an amount in excess of $35 per week. Likewise, under the policy adopted by the Union's ex- ecutive board well before the instant dispute arose, no benefits will be disbursed once a strike settlement has been reached-even if, but for transmittal delays, em- ployees would have otherwise received such payments at some point before the date of the strike settlement. This strongly tends to show that disbursement of strike benefits is linked solely to a presumed "need" on the part of potential recipients and is entirely unrelated to con- cepts of "service" to the strike. For it is plain that even the most loyal and active participants in the strike will not receive benefits from the strike treasury if they are receiving any substantial earnings from employment (without regard to the identity of the employing source of such earnings). Further militating against the interpre- tation that strike benefits are in the nature of "earnings" which "accrue" to employees as they perform strike "services" is the fact that vastly different degrees of actual strike participation may be imposed on members depending on which employer is being struck and how many unit employees are involved, but the strike benefit 699 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amount remains constant at $50 per week, without regard to the claimant's actual degree of participation. Accordingly, the record shows affirmatively that the Union limits strike benefit payments to those who need it-using the question whether the striker is employed as a principal criterion for eligibility. Therefore, strike bene- fits-at least under the Union's practices herein, if not in general-are not classifiable as remuneration for services rendered by persons who are on strike.12 Moreover, it is by no means unique to this case that a union's strike benefit treasury will be made available to strikers solely on a "need" basis. In Iowa Beef Processors, supra, the Board noted as a general proposition that: Strike benefits, which often place a substantial burden on the union treasury, are normally utilized to benefit employees who are totally without income during a strike. A union has a legitimate in- terest in seeing that these payments inure to the benefit of those employees and their families who are not receiving wages from a collateral source Against the foregoing background, it is therefore virtu- ally impossible to view the withholding of benefits from Benic, Vavrick, and Obar-persons who were, by virtue of their return to work, "in regular positions" within the meaning of the above-quoted section 5-as being some- how punitively linked to their strikebreaking activities, rather than their lack of need for further benefit pay- ments because of their return to work. To be sure, the withholding might be regarded as pu- nitive in nature had it been shown that the Union con- strued its own disbursement rules more generously for persons who obtained a "regular position" at some place other than the struck plant. Thus, if the Union permitted payment of benefits to such persons for "past" strike par- ticipation even though, by the time of disbursal, they had obtained "regular positions," there would be grounds for viewing the withholding of payments from Benic, Vav- rick, and Obar as being linked to their strikebreaking ac- tivities, as opposed to their lack of "need." But the evi- dence shows without contradiction that it was an em- ployee's status (i.e., receiving earnings elsewhere or not) at the time of disbursal which controlled the Union's de- cision whether or not to issue a benefit check to him. 4 1 12 In CWA, Local 1127, supra, 208 NLRB at 263, the Administrative Law Judge made the passing comment regarding strike benefit "assis- tance" that "strikers rendered services for that assistance . . The ulti- mate holding in that case does not turn on whether or not strike benefit payments are classifiable as "earnings" for "services rendered" as op- posed to "contributions" linked primarily to "need." Therefore, the quoted passage has no precedential effect and it is moreover doubtful that the Board intended in that case to adopt a general presumption that strike benefits are a form of payment for services rendered. See discussion below of the Board's holding in Iowa Beef Processors, upra. i3 245 NLRB 1035, 1039, fn. 19. 14 More specifically, the record is silent as to how the Union would treat the hypothetical employee who had been on strike for 2 weeks (ex- cluding the first week of the strike) but who thereafter (and before the benefit "payday" for that 2 weeks of participation) obtained a "regular position" for some employer other than the struck employer. The record does show, without contradiction, however, that in an analogous situa- tion (i.e., the "strike settlement" case governed by the rule passed by the Union's executive board), employees who may have participated in a full construe it to have been the General Counsel's burden to have come forward with a contrary showing once the Union introduced evidence tending to show that an em- ployee's employment status at the time of disbursal deter- mined whether he or she would be eligible for benefits from the strike treasury. The General Counsel did not come forward with a contrary showing and, accordingly, there is no basis for finding that Benic, Vavrick, and Obar failed to receive a benefit check simply because they breached union discipline by returning to work for the struck Employer. In summary therefore, I conclude that the Union with- held strike benefits from Benic, Vavrick, and Obar be- cause, as of the May 29 benefit "payday," those three employees were no longer deemed by the Union to have need for the benefits since they had obtained "regular positions." So far as this record shows, this determina- tion was made pursuant to, and consistent with, an inter- nal rule of the Union which furthered its legitimate inter- est in husbanding strike treasury funds by limiting pay- ments to those who needed it; and that interest does not contravene any overriding Federal labor policy. Iowa Beef Processors, supra; Scofield, supra. The General Coun- sel did not come forward with any evidence tending to show that Benic, Vavrick, and Obar were the victims of a discriminatory application of an otherwise lawful rule because they engaged in strikebreaking. Accordingly, the principal theory underlying the complaint lacks merit. C. Alternative or Supplementary Contentions of the General Counsel 1. Discrimination due to nonmembership The General Counsel argues additionally that Benic, Vavrick, and Obar were denied benefit payments on May 29 because they were no longer members of the Union-relying on language in the Union's constitution implying that only "members" are eligible for benefit payments. This contention likewise lacks a reliable evidentiary predicate. It has been noted that the record is silent re- garding the reasons, if any, which were given to the three employees in connection with the withholding of benefits from them on May 29. Accordingly, it does not necessarily follow from the existence of language in the Union's Constitution implying t 5 that only "members" all entitled to strike benefits that the nonmembership of Benic, Vavrick, and Obar was the true reason for the Union's withholding of benefits from them. Indeed, as 2 weeks of striking since their last benefit "payday" will not receive a benefit payment for those 2 weeks if the strike is settled before the "payday" for those 2 weeks. This is so because they no longer "need" the benefits as a result of their intervening return to work under the strike settlement. From that I infer, absent contradictory evidence, that the employee in the hypothetical example would also be denied benefits due to his more recent acquisition of a "regular position." 15 In view of my conclusions below, it is unnecessary to, and I there- fore do not, determine whether the Union's constitution requires the in- terpretation that one must be a member of the Union at the time of dis- bursement of benefit payments in order to receive the same. There is sup- port in Fullerton's testimony for the contrary proposition, although it was proffered in the hypothetical mood and is therefore largely unin- structire as to what the Constitution intends in such a case. 700 POTTERY WORKERS found above, it is at least clear that their employment by May 29 in "regular positions" would have been an inde- pendently sufficient basis for the withholding of benefits. Therefore, it is simply not true, as the General Counsel maintains, that "but for their union resignations, Benic, Obar, and Vavrick would have received strike fund pay- ments." 6 Neither does the General Counsel make an intelligible argument in support of the proposition that Section 8(b)(1)(A) is violated by a union's denial of strike benefit funds to otherwise eligible individuals because they re- signed from membership. " In any event, for the reasons set forth above, that issue is not raised by the facts in this case and need not be decided. 2. Failure to spell out rules as denial of fair representation The General Counsel argues that Respondent's consti- tutional strike benefit provisions contain "clear language" giving rise to an expectation that strike benefits will be paid to strikers in return for defined service and, further that "Nothing in the record or in Respondent's constitu- tion indicates that Respondent's members were informed that Respondent's constitution was interpreted as impos- ing a forfeiture of accrued strike benefits upon resignees who returned to work prior to disbursement of strike benefit funds."' 8 From this, the General Counsel argues that it is a denial of the Union's duty of fair representa- tion to employ additional "unstated eligibility require- ments." ' 9 I will not dwell on the already disposed of factual con- tentions implicit in the General Counsel's argument that obtaining eligiblity to receive strike benefits warrants treating such benefits as "accrued earnings" for "services rendered" 20 and/or that benefits were withheld from Benic, Vavrick, and Obar solely because they had re- ' G.C. br., p 11 i7 Since the withholding of strike benefits from otherwise eligible em- ployees as a penalty for resigning union membership may be seen as a form of restriction on an employee's right to resign, the General Counsel is presumably seeking to have answered a question which the Court ex- pressly left open in Granite Slate. supra (409 U S. at 214, 216), and Bxster Lodge. supra (412 US. at 88) In Machinists Local 1327, Internalional 4sso- ciation of Machinisrs and Aerospace Worker. A41L-CIO, District Lodge 115 (Dalmo Victor), 231 NLRB 719 (1977), the Board did not construe the union's conduct as a restriction on the right to resign membership and therefore expressly refused to decide under hat circumstances a union violated Sec 8(bX)(A) by imposing restrictions on resignation id at 720). In denying enforcement in Dalmo ictor, the Ninth Circuit found that the union's conduct, in fact. operated as such a restriction Treating the issue therefore as one expressly left open in Booster Lodge and Gratlite Slate, the circuit panel found the "restriction" to reflect a reasonable effort to protect legitimate union interests and, therefire, it did nolt io- late Sec. 8(b)(l)(A). N.L.R.B . Machinist Local 1327. clc.. 6h8 F2d 1219 (1979) The facts in Dalmo Victor are inapposite to those herein and the Ninth Circuit's opinion provides no support for the General Counsel's alternative contention no"s under consideration. is G.C. br., p 13 O1 Id. at 14 2n To repeat: Consistent with the Union's constitution reflecting that "need" is a paramount criterion governing strike benefit payments, and according to the undisputed actual payment practice, a striking employee acquires, at best, an expectation of future payment of benefits which is subject to an actual need on the day benefits are disbursed. If the "need" disappears by virtue of the otherwise eligible claimant's having obtained a "regular position" before disbursement takes place. then that claimant's eligibility to receive the payment likewise disappears signed their membership prior to the May 29 "payday." Rather, assuming for the moment that the average em- ployee represented by the Union might not be fully on notice from the constitution alone of all of the potential bases on which the Union might withhold the payments of benefits on a given disbursement day, I nevertheless conclude that the complaint never raised the "fair repre- sentation" issue now being urged by the General Counsel and, accordingly, that such an issue was never fully liti- gated. Thus, nothing in the complaint or in the General Counsel's brief oral argument at hearing put the Union on notice that it was its failure to "spell out the rules" for making strike benefits disbursements which restrained and coerced employees in the exercise of their rights in violation of Section 8(b)(l)(A). Rather, the complaint merely asserted that it was the actual withholding of benefits from the three claimants, under circumstances where they had already resigned their union member- ship, which violated that section. This record is largely the product of stipulations of fact by the parties which are relevant only to the latter allegation. Had the Union been put on notice that the complaint was attacking its alleged failure to communi- cate to employees its otherwise lawful rules and policies governing when strike benefit disbursements would be made, the Union might have sought to introduce evi- dence showing how and to whom it made such rules and policies known. The absence of evidence bearing on this latter question is therefore not something from which an inference adverse to the Union must be drawn. Accordingly, since there was no notice of the latter theory until submission by the General Counsel of her post-trial brief, the fair representation issue was never litigated, and the complaint, insofar as it depends on such a theory, must be dismissed, proforma. Alternatively, assuming that the fair representation theory was properly encompassed within the General Counsel's complaint, I would reject it on its merits. As a matter of interpretation, I do not construe the Union's constitution as misleadingly suggesting that, regardless of need on the day of disbursement, an employee who has otherwise satisfied eligibility for benefit payments has a vested right to such moneys. As a matter of law, even if there were misleading features in the Union's constitu- tional provisions governing strike benefit payments, a showing was required that such allegedly misleading fea- tures somehow had an impact upon the three claimants' employment with their employer. As the Board's Deci- sion in lowa Beef Processors, supra, makes clear, the con- duct of "internal union matters," such as the adequacy with which a union communicates its strike benefit pay- ment policies to employees, is not subject to the fair rep- resentation doctrine, unless it is shown that such conduct has some detrimental impact on the employment relation- ship.2 t There was no such showing. Accordingly, I reach these ultimate: ' 245 NlRB at1 13 19. ad cases discussed 701 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW I. The employer 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(5) of the Act. 3. The Union did not commit unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act when it withheld strike benefit payments from Fedor Benic, Leslie Vavrick, and Milton Obar on or about May 29, 1979. Upon the foregoing findings of fact, and conclusions of law, and in accordance with Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 2 The complaint is dismissed. 22 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 702