Local 1936, Brotherhood of Railway, Airline & Streamship Clerks

LOCAL 1936, BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP CLERKS Local 1936, affiliated with the Brotherhood of Rail- way, Airline and Steamship Clerks, Freight Han- dlers, Express and Station Employees, AFL-CIO (NCR Corporation) and Charles Sanders and Harold A. Fritts Local 1933, affiliated with the Brotherhood of Rail- way, Airline and Steamship Clerks, Freight Han- dlers, Express and Station Employees, AFL-CIO and Harry Glasgow, Harry J. Amon, Thomas William Burns, Thomas M. Spiers, Jay R. West, and James Anthony DeJoseph Local 1940, affiliated with the Brotherhood of Rail- way, Airline and Steamship Clerks, Freight Han- dlers, Express and Station Employees, AFL-CIO and John F. Willforth and Richard J. Gomulka Local 1939, affiliated with the Brotherhood of Rail- way, Airline and Steamship Clerks, Freight Han- dlers, Express and Station Employees, AFL-CIO and James E. Miller Local 1932, affiliated with the Brotherhood of Rail- way, Airline and Steamship Clerks, Freight Han- dlers, Express and Station Employees, AFL-CIO1 and Sim Evans. Cases 14-CB-3116, 14-CB-3127, 14CB-3264 through 3268 and 14-CB-3270 (formerly 4-CB-2695, 2697, 2698, 2704, 2710, 2712), 14-CB-3271, 3272 (formerly 6-CB-3579, 3584), 14-CB-3272 (formerly 8-CB-2961), and 14-CB-3274 (formerly 29-CB-2386) April 22, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER On January 21, 1977, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, the Respondents filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, 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 229 NLRB No. 39 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondents, Locals 1936, 1933, 1940, 1939, and 1932, affiliated with the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, their officers, agents, and representatives, shall take the action set forth in said recommended Order. The names of the Respondents appear as amended at the hearing. DECISION STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on July 27, 1976, at St. Louis, Missouri; on September 10, 1976, at Philadelphia, Pennsyl- vania; on September 30, 1976, at Brooklyn, New York; on October 5, 1976, at Pittsburgh, Pennsylvania; and on October 6 and 7, 1976, at Cleveland, Ohio; pursuant to various charges and amended charges filed by individuals in Regions 4, 6, 8, 14 and 29 of the National Labor Relations Board (the original and eventual numbers of which appear in the caption) on dates between December 31, 1975, and May 28, 1976, which were duly served upon the respective Respondent, as applicable; upon complaints and notices of hearing issued by the Regional Directors for Regions 4, 6, 8, 14, and 29 between April 26 and June 4, 1976, all of which were served upon the respective Respondent, as applicable; an order of the General Counsel of the National Labor Relations Board on June 14, 1976, transferring cases to Region 14; an order of consolidation and notice of hearing issued by the acting Regional Director for Region 14 on July 20, 1976, which was duly served on Respondents, and on various amend- ments to the consolidated complaint which were likewise duly served on Respondent or made on the record at the hearing. The consolidated complaint, as finally amended (which will be referred to hereinafter simply as the complaint), alleges that Respondents, variously, violated Section 8(bXI)(A) of the National Labor Relations Act, as amended, by notifying employees who had resigned from membership in Respondents, or who had not been members, that they were required as a condition of continued employment with the NCR Corporation (herein- after referred to as the Employer), to pay dues and reinstatement fees - said fees being imposed and said dues being charged because of the employees' failure to pay dues at times they were not contractually obligated so to do as a condition of employment. In its answers to the complaint, which were also duly served or made on the record at the hearing, Respondents have denied the commission of any unfair labor practices. For reasons which appear hereinafter, I find and conclude that the Respondents have violated the Act, essentially as alleged in the complaint. At the hearing the General Counsel and Respondents were represented by counsel. Each party was given full opportunity to examine and cross-examine witnesses, to 243 DECISIONS OF NATIONAL LABOR RELATIONS BOARD introduce evidence, and to file briefs. The General Counsel and Respondents waived the presentation of oral argument at the conclusion of the hearing. Subsequent to the hearing, the General Counsel and Respondents have submitted briefs, which have been considered. Upon the entire record' in this case including the briefs and from my observation of the witnesses, I make the following: FINDINGS OF FACt I. THE BUSINESS OF THE EMPLOYER The Employer is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of, the laws of Delaware, engaged in the manufac- ture, sale, and service of business machines and has its headquarters in Dayton, Ohio. During the year preceding the issuance of the complaint, the Employer made purchases in the Commonwealth of Pennsylvania from sources located outside the Common- wealth of Pennsylvania valued in excess of $50,000. The complaint alleges, the answers admit, and I find that the Employer is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. RESPONDENTS; THE LABOR ORGANIZATIONS INVOLVED Respondents Locals 1936, 1933, 1940, 1939, and 1932, all affiliated with the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. Each of these labor organizations will sometimes be referred to hereinafter simply as the Union at the location where it represents unit employees. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Agency Status of Respondent Officials The complaints allege, the answers as amended admit, and I find that the following individuals were agents of the After the close of the hearing, the General Counsel and Respondents entered into a stipulation. I hereby reopen the record to receive this stipulation which is as follows: IT IS HEREBY STIPULATED AND AGREED by and between Counsel for the General Counsel and Respondents that the collective-bargaining agreement effective December 5, 1975, to August 31, 1977, as described in paragraph 6 above, contains the following provisions: ARTICLE I UNION SECURITY I. An employee who is a member of the Union at the time this Agreement is signed shall continue membership in the Union for the duration of this Agreement to the extent of paying membership dues and fees as uniformly required. 2. An employee who is not a member of the Union at the time this Agreement is signed shall become a member of the Union within sixty (60) days after the signing of this Agreement, or within sixty (60) days following employment, and shall remain a member of the Union to the extent of paying membership dues and fees uniformly required. instant Respondent Local, acting in its behalf, within the meaning of Section 2(13) of the Act at all relevant times herein: For Local 1936 (St. Louis): Thomas Fitzgibbon, presi- dent, Allied Services Division; Jesse Pelham, president, business machine technicians and engineers section; Norman D. Launhardt, Local chairman; Smith B. Hart, president, Local 1936; Fred Moran, treasurer, Local 1936; and George Reid, financial secretary-treasurer, Local 1936. For Local 1933: Lawrence Nelms, Local president; Joseph Francisco, secretary-treasurer; Art Blanchette, Local chairman. For Local 1932 (Hempstead and Patchogue): Arthur Poslusny, chairman of Local 1932; R. Edward Prescott, treasurer of Local 1932; and Jesse A. Pelham, vice president, Allied Services Division. For Local 1940 (Johnstown and Irwin): Daniel A. Connors, financial secretary of Local 1940. For Local 1939 (Cleveland): Paul A. Barjiel, chairman of protection committee of Local 1939; and Paul A. Daniels, financial secretary-treasurer of Local 1939. B. Background Each of the Respondents was a party to a collective- bargaining agreement with the Employer effective from July 1, 1974, until August 31, 1975, which was extended to September 30, 1975. Each Respondent represents a unit of the Employer's field engineers. Local 1936's unit at St. Louis includes some 60 employees; Local 1933 represents about the same number at Fort Washington Pennsylvania; Local 1932 represents approximately 55 employees at Hempstead and Patchogue, New York; Local 1940 represents some 74 employees at Johnstown and Irwin, Pennsylvania; and Local 1939 represents about 63 to 73 employees at Cleveland, Ohio.2 Each of these collective-bargaining agreements had an identical union-security clause which provided as follows: Art. 1, Union Security. 1. An employee who is a member of Union at the time this Agreement is signed shall continue membership in the Union for the duration of this Agreement to the extent of paying membership dues uniformly required. 3. Employees cited to the employer shall first be furnished reasonable advance written notification of such delinquency, which shall contain a precise statement of the amount and months for which dues and fees are owed and a statement of exactly what action is required of an employee to protect his job. 4. The Union will notify the employer and employees who fail to tender their application and fees within the time limits specified above, or of employees who fail to tender uniform dues within the required time. Par. 6 referred to in the stipulation is apparently par. 6 of the so-called consolidated complaint and notice of hearing issued by the Regional Director of Region 6 on May 17, 1976 (G.C. Exh. 31i). the only par. 6 of any of the complaints which purports to describe the 1975-77 contract. Having received the stipulation, the record is again closed. The transcript of the record in these proceedings is hereby corrected. 2 Sister locals of Respondents represent field engineering units of the Employer at Detroit, Michigan, and New Brunswick, New Jersey, but these employees are not involved in this proceeding. 244 LOCAL 1936, BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP CLERKS 2. An employee who is not a member of the Union at the time this Agreement is signed shall become a member of the Union within sixty (60) days after the signing of this Agreement, or within sixty (60) days following employment, and shall remain a member of the Union, to the extent of paying membership dues uniformly required for the duration of this Agreement. Any employee whose religious beliefs forbid him from becoming a member of the Union shall not be required to become or remain a member of the Union. However, he shall be required in lieu thereof to pay to the Union such fees and dues as he would have paid as membership dues to the Union, had he become and remained a member of the Union as provided above. Employees entering the unit during the term of this Agreement whose religious beliefs forbid them from becoming a Union member shall notify the Union in writing of such fact. 3. The Union will notify the employer and employ- ees who fail to tender their application and fee within the time limits specified above, or of employees who fail to tender uniform dues within the required time. Upon receipt of such notice, the employer will, within ten (10) calendar days so notify the employee that he is in violation of the provisions of this Article, and he shall have his service and seniority terminated. The Corporation will furnish copies of this notice to employees, and to the designated officer of the local. On October 2, 1975, after the extensions of the collective- bargaining agreements had expired, all of the Respondents went on strike. From at least October 2, 1975, until December 5, 1975, no collective-bargaining agreements were in effect between the Employer and the Respon- dents. 3 At the conclusion of the strike on December 5, 1975, a new collective-bargaining agreement was entered into between the Employer and each Respondent, effective from December 5, 1975, to August 31, 1977. These new contracts contain the following uniform union-security provisions with certain additional language, as noted, being contained only in the contract of Local 1939 at Cleveland: Art. 1, Union Security. 1. An employee who is a member of the Union at the time this Agreement is signed shall continue membership in the Union for the duration of this Agreement to the extent of paying membership dues and fees as uniformly required. 2. An employee who is not a member of the Union at the time this Agreement is signed shall become a member of the Union within sixty (60) days after the signing of this Agreement, or within sixty (60) days following employment, and shall remain a member of the Union to the extent of paying membership dues and fees uniformly required. 3. Employees cited to the employer shall be furnished reasonable advance written notification of such delinquency, which shall contain a precise 3 Respondents' answers to the complaints at Philadelphia and St. Louis so admit. Also, see the admissions of Respondents' agents Poslusny (Local 1932. Hempstead and Patchogue). Connors (Local 1940, Johnstown and Irwin) and Barjiel (Local 1939. at Cleveland). While one complaint alleges, and the answer admits, that some provisions statement of the amount and months for which dues and fees are owed and a statement of exactly what action is required of an employee to protect his job. 4. The Union will notify the employer and employ- ees who fail to tender their application and fees within the time limits specified above, or of employees who fail to tender uniform dues within the required time. The second paragraph of Local 1939's contract adds the following: Any employee whose religious beliefs forbid him from becoming a member of the Union shall not be required to become or remain a member of the Union. However he shall be required in lieu thereof to pay to the Union such fees and dues as he would have paid as membership dues to the Union had he become and remained a member of the Union as provided above. Employees entering the unit during the term of this Agreement whose religious beliefs forbid them from becoming a Union member shall notify the Union in writing of this fact. The fourth paragraph in Local 1939's contract adds the following: Upon receipt of such notice, the employer will, within ten (10) calendar days so notify the employee that he is in violation of the provisions of this Article, and he shall have his service and seniority terminated. The Corporation will furnish copies of this notice to the employees, and to the designated officer of the Local. Respondents' International Constitution (Resp. Exh. 3), article IV, section 1(a), sets forth the dues policies governing all of the Respondent locals herein and states as follows: Dues are due and payable on the first day of each calendar month which means that two months dues, and not a portion thereof, must be paid on or before midnight of the last day of that month or the member will be automatically suspended. It is the responsibility of every member to know when dues are payable and pay them to an authorized representative of his lodge within the time limits specified in this Article. No demand for payment of such dues or notice of nonpayment thereof or of delinquency is necessary or required. A member who fails to pay his dues within the time limits specified in this Article is automatically suspended at 12 o'clock midnight of the last day of the second month for which he owes dues. A member who has been suspended for nonpayment of dues may be reinstated upon payment of dues still owing and a reinstatement fee. Pursuant to article 27 of the same constitution, employ- ees who work more than 40 hours in a calendar month are of the subsequent December 1975 contract were made retroactive to September 1975, the union-secunty provisions, as will appear, take effect by their explicit terms prospectively from the signing of the agreement on December 5, 1975. 245 DECISIONS OF NATIONAL LABOR RELATIONS BOARD liable for that month's "full dues." An employee who works less than 40 hours in a calendar month is only liable for so- called retention of membership dues, which is $1.50 per month. Article 27 also provides for increases in union dues and fees where approval is received from a majority of the unit affected and the International president. Pursuant to these provisions, initiation fees for all of Respondents were increased to $75 and reinstatement fees were increased to $100. Both these increases were apparently established in the fall of 1975 and became effective no later than January 1, 1976. Dues for all of the Respondents were also increased from $6.50 per month to $12 per month effective January 1, 1976. Prior to the beginning of the strike on October 2, 1975, some of the employees in the units involved herein had availed themselves of the option under the old (1974-75) contract to pay sums equivalent to dues but not to become members of Respondents. 4 These employees were consid- ered by Respondents to be second-class members with the same rights and privileges as first-class members.5 After the expiration of the 1974-75 contract (which was extended, as noted, to September 30, 1975), or during the ensuing strike which ended on December 5, 1975, a number of employees who had been members of the Respondent Locals sent letters of resignation to the Respondent Locals. At least one employee who had never been a member but paid dues also sent a letter of resignation. The former members who resigned during the strike and the employees who had not been members prior to the strike worked for the Employer during all of, or a part of, the strike. Virtually all of the employees who sent or handed in letters of resignation during the strike did so prior to or simultaneously with their return to work.6 Under the terms of the aforementioned International constitution governing all of Respondent Locals there is no provision for resignation from any Respondent except by 4 At St. Louis, these employees were Harland Diebel, Ronald Ellis, Harold Fritts, and Kenneth Bradburn. At Fort Washington, these employees were Harry Glasgow, Jay R. West, and Harry J. Amon. At Hempstead and Patchogue, these employees were William Baxter and Walter I. Gould, Jr. At Cleveland, these employees were Ronald Chilcot, Robert J. Harry, Robert D. Kosloski, Peter C. Ford, James Miller, Angelo Rinaldi, Ronald Rowe, J. E. Serdinak, and John H. Sudimak. No employee of Johnstown and Irwin was shown to have exercised this option. 5 The distinction between first and second class was that second-class member had not elected to complete his membership application. 6 At St. Louis, these employees who resigned and returned to work during the strike were Don Sorrells, Dana Skornia, Jim Lee, Ronald Pensoneau, Harry Keys, Lonnie Karius, David Cox, John Myers, Gerhare Harms, John Guebert, Robert Grant, Ronald Reiner, Clarence Kremer, Karl Reichmuth, Russell Heise, Irvin Huser, Thomas Odehnal, Michael Parker, Clifford Flath, Herbert Janker, John Henderson, Tom Kinder, George Nitchman, Charlie Sanders, Terry Monachella, Mark Dienstbach, Robert Huelster, Art Ritz, Robert Uhlenbrock, Earl Nice, and Thomas Reisner. Also, at St. Louis, employees Diebel, Ellis, Fritts, Damon, and Bradburn - who paid dues but had not joined the Union - did not go on strike at all. At Fort Washington, those employees who resigned from the Union and returned to work during the strike were William Burns, James DeJoseph, and Thomas Spiers. Also, at Fort Washington, Glasgow, West, and Amon - who paid dues but never joined the Union - did not honor the strike for its entire duration (Amon sent a letter of resignation despite the fact he never joined the Union). At Hempstead and Patchogue, those employees who resigned from the Union and returned to work during the strike were Joseph Borg, Jr., Ronald Kowalski, and Sim E. Evans. Also, at Hempstead and Patchogue, employees obtaining a withdrawal if the member leaves employment, which did not occur here. Otherwise, a member simply becomes suspended for failure to pay dues for 2 months. Thereafter, he is liable for a reinstatement fee and for repayment of the 2 months' back dues. Even though no union-security agreement was in effect during the period of the strike from October 2 until December 5, 1975, and even though the union-security agreement which went into effect on December 5, 1975, provided that nonmembers as of that date had 60 days to join the Union, the Respondent Locals invoked the policy of their International constitution of charging employees who worked during the strike dues for any month in which they worked more than 40 hours. The Respondents also determined that any employee who had not paid dues for 2 months was suspended from membership and liable not only for the 2 months' dues but also for a reinstatement fee. The Respondents sent letters to employees who worked during all or part of the strike advising them that dues and reinstatement fees were owed on the foregoing basis and that failure to remit the same would cause the employee to be cited to the Employer for noncompliance with the union-security agreement of the new contract. These letters were sent or delivered by the Respondent Locals at their respective locations to the instant employees 7 on the following dates: At St. Louis, on January 12, 1976; at Fort Washington, within 2 days of January 19, 1976; at Hempstead and Patchogue, on January 15, 1976; at Johnstown and Irwin, on January 15, 1976; and at Cleveland, on January 17, 1976. Each letter followed a standard format,s which was as follows: Baxter and Gould (who paid dues but never joined the Union) did not participate in the strike. At Johnstown and Itwin, those employees who resigned from the Union and returned to work during the strike were John F. Willforth, Jack Beal, William Pallenchar, Presley Shuss, George H. Swiegard, Richard Gomulka, James P. Lehman, Glenn 0. Hershberger, and Glendon Wayne Hostetler. Charles Minana worked during the entire strike but did not resign from the Union until January 28, 1976, almost 2 months after the strike was over. At Cleveland Ohio, the employees who resigned from the Union and returned to work during the strike were Lloyd Fiste, John M. Eads, James J. Chase, J. M. Lilley, John P. Krawczynski, and John Fuss. The following employees worked during the entire strike but sent letters of resignation at its beginning or within a few days thereafter: John Hamilton, Keith Robertson, Franklin Winslow, William J. Magalotti, William D. Knowlson, and Wayne Cadnum. The following employees, who neverjoined the Union but who paid dues, worked during the entire strike: Chilcot, Kozloski, Ford, Miller, Rinaldi, Rowe, and Serdinak. Employee Sudimak, who likewise never joined the Union, returned to work during the strike. Since the commencement of this proceeding, employee Fiste has left employment; employees Hamilton, Harry, and Sudimak have retired and employee Rowe has transferred out of the unit. 7 The letters went to all employees, previously recited, who worked during all of, or part of, the strike with the exception of Skornia, Ritz, and Dientsbach at St. Louis - each of whom was, in any event, approached by Respondent Local 1936 in December 1975, as will appear. s The letters sent to the Johnstown and Irwin employees added a statement describing the increase in dues, reinstatement fees, and initiation fees, also added a notation regarding the amount of payroll deduction, and enclosed a copy of the 1975-77 collective-bargaining agreement and articles from the constitution of the grand lodge. 246 LOCAL 1936, BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP CLERKS TO: DATE: --- Our records show that you have failed to maintain your membership in the Union as required by the terms of the BRAC Constitution. You failed to pay dues for the months of --- and pursuant to the Constitution and By Laws of the Brotherhood your membership in the Brotherhood has been suspended. You last paid dues for the month of --- and when you became two months in arrears, your membership is automati- cally suspended. (Statutes for the Government of Lodges, Article 6) Therefore, it is necessary for you to reinstate your membership immediately. An application for member- ship is enclosed and you must fill out this application and return same with the proper amount of reinstate- ment fee and dues within fifteen (15) days of the date of this letter. The reinstatement fee is $-- and you also owe -- months dues. The total amount that must accompany the membership application form is $--. I cannot stress too strongly the importance of your filling out the application and forwarding same with the correct amount of reinstatement fee and dues to the undersigned, as the neglect of such will result in your being cited to the Company for being in non-compli- ance with the Union Shop Agreement. Very Truly, /s/ ------ cc: Mr. Thomas Fitzgibbon, President/ASD 9 The letters in St. Louis were signed by George Reid for Respondent Local 1936; those in Philadelphia were signed by Joseph K. Francisco for Respondent Local 1933; those in Hempstead and Patchogue were signed by R. Edward Prescott for Respondent Local 1932; those in Johnstown and Irwin were signed by Daniel A. Connors for Respon- dent Local 1940 and those in Cleveland were signed by Paul A. Daniels for Respondent Local 1939. Each letter signer is an admitted agent of his Respondent Local. Some of the employees have paid the amounts demanded in the letters. The General Counsel concedes that the Respondents have not, however, requested that the Employer discharge those persons who have failed to pay the requested dues and reinstatement fees. Further, at St. Louis, Respondent Local 1936 Chairman Launhardt and President Hart contacted certain employees in late December 1975 and informed the employees that, if they did not pay back dues before the end of that month, they would also be liable for a reinstatement fee. These individual employees included Sorrells, Skornia, Penso- neau, Karius, Sanders, Dienstbach, and Ritz. These individuals had not paid dues for November and Decem- ber 1975 and would not have been under suspension (which begins, as heretofore noted, when a member is 2 months in arrears under the rules governing all Respondent Locals) until January 1, 1976. Because Skornia, Ritz, and Dienstbach paid these dues, as requested, they were not 9 Although such a letter was sent to Chilcot, Fuss. Robertson, and Winslow, at Cleveland, Respondent Local 1939 took the position at the hearing that these individuals are not liable for reinstatement fees. sent the above-described letter by Local 1936 on January 12, 1976, which went to all other employees at St. Louis who had worked during all of, or part of, the strike. On December 16, 1975, a deauthorization petition was filed by Thomas A. Odehnal, a St. Louis unit employee, in Case 14-UD-91. Thereafter, a deauthorization election was conducted. On February 26, 1976 (after the demand for back dues and reinstatement fees herein were made), the Acting Regional Director for Region 14 issued a Certification of Results of Election in which he certified that a majority of the employees eligible to vote in the St. Louis unit voted to withdraw the authority of Local 1936 to require, under its agreement with the Employer, that membership in Local 1936 be a condition of employment with the Employer at St. Louis. Concluding Findings It is clear from the foregoing that a lawful union-security agreement was in effect in the 1974-75 contract at all locations here involved and that the last extension of that contract expired on September 30, 1975. It is likewise clear that there was no union-security agreement in effect during the period of the strike which lasted at all locations herein from October 2, 1975, until December 5, 1975. A lawful union-security provision again appeared in the 1975-77 contract but, under its provisions, no employee who was not a member of Respondents was required to pay membership dues or fees, as uniformly requested, until 60 days following December 5, 1975, which was the day the 1975-77 contract was executed. It further appears from the foregoing that all of the employees, from whom dues and/or reinstatement fees were sought by Respondents in the January 1976 letters under threat of being discharged by the Employer, either had never been members of any of Respondents or had resigned their membership in the appropriate Respondent prior to the effective date of the 1975-77 contract - all, that is, except Charles Minana, who sent in his letter or resignation on January 28, 1976. Inasmuch as no union-security agreement was in effect during the period of the strike, there was no contractual requirement that any of the employees herein involved (not even Minana) pay dues or fees as a condition of employment during the months of October and November 1975, and none except Minana could be charged dues or fees as a condition of employment in December 1975 or January 1976 because no dues or fees would become due until on or about February 3 - i.e., 60 days after the union-security provisions of the 1975-77 contract went into effect. All of these employees involved in the present case worked at least 40 hours in November and December 1975, and all were charged dues for both these months (and some for October 1975). Virtually all those involved were likewise charged reinstatement fees and said fees were assessed as the result of their failure to pay dues during November and December 1975. 247 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondents' letters to the employees in January 1976 therefore constituted an effort to collect dues and fees from the employees-under threats of Respondents seeking their discharge by the Employer - for periods when no dues were owing as a condition of employment. Respondents argue, however, that, because said dues and fees were due under the provisions of Respondents' International constitution (requiring payment of dues for any month in which a member works at least 40 hours), Respondents were entitled to seek such dues and fees under the "financial core" support accorded to them under the proviso to Section 8(a)(3) of the Act which legalizes union-security agreements like those present herein.' o According to Respondents, all those employees involved here who were suspended members were determined by Respondents to be in arrears of at least 2 months' dues when the letters were sent in January 1976 and that each such suspended member owed the respective Respondent those 2 months' dues as well as a reinstatement fee at the time the letters were sent. Respondents contend that such dues and fees were owed because none of the employees involved herein - whether he had been a class I or class 2 member according to Respondents' terminology - had ever legally dissolved his union membership relationship which under the requirements of Respondents' Internation- al constitution continued until the employees became suspended. Suspension occurs after the employee has let his dues lapse for 2 months. Respondents' argument goes on that said employee, upon resuming the union member- ship relationship (i.e., remaining in employment under a union-security clause), became liable for the 2 months' back dues and a reinstatement fee. Respondents further point out that the charge for 2 months is not unreasonable because the suspended union member was covered accord- ing to the governing International constitution for union benefits for 60 days after he last paid dues (e.g., he continued to be entitled to the death benefit for that period) and, Respondents say, the reinstatement fee is not excessive nor discriminatory. Finally, Respondents urge that their membership suspension rules are not such as "to invade or frustrate an overriding policy of the labor laws so that the rules may not be enforced" - the test for enforcement of such internal union rules set forth by the Supreme Court in Scofield, et al. [Wisconsin Motor Corp.] v. N.LR.B., 394 U.S. 423, 429 (1969). I reject these contentions. While I have found that each of the employees involved herein worked at least 40 hours in November and io See N.L.R.B. v. General Motors Corporation, 373 U.S. 734 (1963), where the Supreme Court held that under Sec. 8(aX3) of the Act, as amended, union membership as a condition of employment had been whittled down to its "financial core," i.e., dues and fees as uniformly required. " 1 Namm's Inc., 102 NLRB 466 (1953), and cases cited therein. (While a separate and unrelated holding in Namm's Inc. was later overruled by the Board in Kaiser Steel Corporation, 125 NLRB 1039 (1959). the instant holding of Namm's Inc., is still the law.) Tech Weld Corporation, 220 NLRB 76 (1975). 1I International Brotherhood of Boilermakers, Iron Ship Builders. Black- smiths, Forgers and Helpers, Local Lodge No. 338, AFL-CIO (Eidal International Division Southwest Factories, Inc.), 166 NLRB 874 (1967), enfd. 409 F.2d 922 (C.A. 10, 1969); Spector Freight System Inc. (Local 600, Highway & City Freight Drivers, Dockmen and Helpers), 123 NI.RB 43 (1959), enfd. 273 F.2d 272 (C.A. 8, 1960), cert. denied 362 U.S. 962. December 1975, and did not (with a few exceptions) pay union dues for those months on or before December 31, 1975, and therefore become liable for 2 months' dues and reinstatement fees on January 1, 1976, under the provisions of Respondent's International constitution, none was liable for dues in those months (nor consequently for a reinstate- ment fee as will appear) as a condition of employment with the Employer. For there was no union-security agreement in effect in November and the month of December was well within the grace period of the union-security provi- sions of the 1975-77 contract, which gave nonmembers 60 days before dues and fees were required as a condition of employment. And it is well settled that back dues owing under an internal union rule are "plainly more than periodic dues or initiation fees that could lawfully be imposed by a labor organization upon employees covered by a union security agreement" to obtain membership in good standing as a condition of employment under a union-security agreement." Nor can a reinstatement fee be assessed as a condition of employment where such fee derives from an internal union rule requiring payment of the fee for failure to pay dues at a time when such dues were not owed pursuant to a valid union-security agree- ment.t2 Accordingly, by sending the January 1976 letters to the employees demanding back dues and reinstatement fees under threat of Respondents seeking their discharge from the Employer, Respondents have each violated Section 8(b)(1)(A) of the Act.'3 The illegality of these demands under my holding, supra, stems from the hiatus in the contractual union-security requirements. That is, insofar as the efforts to collect dues for 40 hours' work in November (or October) 1975 are concerned, the illegality relates to the fact that no union- security agreement was in effect during those months and not, necessarily, from the fact that most of the employees involved herein had resigned from membership before completing their first 40 hours of work during this period.' 4 On a different theory, however, the nonmembership of most of the employees at the time they returned to work during the strike is relevant. I have held that most returned to work after submitting resignations to Respondents or simultaneously with such submission.' 5 The resignation letters of virtually all of those who returned to work simultaneously were received 2 - 3 days later (i.e., at a time when the returning employee had completed less than 40 hours' work). Under the applicable provisions of Respon- dents' International constitution, none who returned to iJ Namm's Inc., supra; see Eidel International Division Southwest Facto- ries, Inc., supra, Spector Freight System, supra. 14 Id While the employees had signed checkoffauthorizations during the life of 1974-75 contract, the standard checkoff forms by their terms expired with the applicable union-security agreement. Of the nonstandard checkoff authorizations signed by some employees, none was shown to authorize dues checkoffs for periods when dues were not owed under the terms of the applicable collective-bargaining agreement. 1s The dates of the receipt of the letters of resignation for most employees involved at Hempstead and Patchogue, Fort Washington, Johnstown and Irwin, and Cleveland so indicate. At St. Louis, Respondent Local 1939 Agent Launhardt did not deny the admission in his preheanng affidavit that all employees who worked during the strike resigned from Local 1939 before returning to work. His later testimony that the dates on the resignation letters and the dates they were received does not alter this earlier admission. 248 LOCAL 1936, BROTHERHOOD OF RAILWAY, AIRLINE & STEAMSHIP CLERKS work purportedly became liable for dues in any month until he had performed more than 40 hours of employment in that month. By demanding dues from the foregoing employees who had resigned before completing 40 hours' work during the strike, Respondents were imposing dues liability on employees who had ceased to be members prior to the time their dues purportedly became due and owing. The imposition of such a liability on a former member who was a nonmember at the time Respondents claimed the liability occurred is, in my judgment, tantamount to a fine against a former member assessed for activities in which he engaged following his union resignation. By making such fine-type assessments in the January 1976 letters, Respon- dents have further violated Section 8(bX)(IA) of the Act.16 By orally notifying some employees at St. Louis in December 1975 of such assessments, Local 1936 further violated Section 8(b)(l)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth above, occurring in connection with the operations of the Employer set forth in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW i. The Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of commerce. 2. Each of the Respondent Locals is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By threatening employees in letters dated in January 1976 that their discharge would be requested if they did not pay back dues and/or reinstatement fees claimed to be due and owing for periods in which no union-security agree- ment between Respondents and the Employer was in effect, each Respondent has violated Section 8(b)(1)(A) of the Act. 4. By demanding in letters dated in January 1976 dues and/or reinstatement fees from nonmembers for working for the Employer during periods occurring after their resignation from membership in Respondents and further occurring while no union-security agreement was in effect or had become applicable, each Respondent has violated Section 8(b)( )(A) of the Act. 5. By orally demanding in December 1975 dues from nonmembers for working for the Employer during periods occurring after their resignation from union membership 16 See Whitaker Cable Corporation, 224 NLRB 580 (1976). In so holding. I reject any defense of Respondents that the employees had not followed the resignation procedures of Respondents International constitution. As Joseph Condo, the general secretary-treasurer of Respondents' International (the Allied Services Division of the Brotherhood of Railway and Airline Clerks), plainly testified, there is no resignation procedure under that constitution other than a withdrawal. The withdrawal procedure of that document, as heretofore mentioned, was not applicable in the circumstances of this case because the employees at the time of their resignation from union membership were not leaving work with the Employer. Thus, for the employees involved herein, there was no resignation route available under that constitution. Cf. International Union, United Automobile, Aerospace and Agricultural Implement Workers, UA W. and its local No. 647 (General Electric Company), 197 NL.RB 608 (1972). and further occurring while no union-security agreement was in effect or had become applicable, Respondent Local 1936 violated Section 8(b)(1XA) of the Act. 6. The foregoing unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in unfair labor practices affecting commerce, it will be recommend- ed that they be ordered to cease and desist therefrom and to take certain affirmative action deemed necessary to effectuate the policies of the Act. Inasmuch as some of the employees paid dues or fees which I have found to have been unlawfully required by Respondents, the affirmative action elements of the recommended Order will require the respective Respondent to reimburse any employee for any back dues and/or reinstatement fees paid by him to the respective Respondent following Respondents' letters of January 1976 or Respondent Local 1936's oral demands in December 1975, less rebates already paid, plus 6-percent interest as required in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), to be computed in the manner set forth in Seafarers International Union of North America, Great Lakes District, AFL-CIO, 138 NLRB 1142 (1962). The affirmative aspect of the recommended Order shall also require the Respondents to rescind the assessments for dues and fees unlawfully demanded from the employees and to inform each employee by written communication of such rescission. 7 Finally, each Respondent shall be required to post an appropriate notice. Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER I8 Respondent Locals 1936, 1933, 1940, 1939, and 1932, all affiliated with the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, their respective officers, agents, and representatives, shall each: 1. Cease and desist from: (a) Threatening employees subject to a union-security agreement authorized by Section 8(a)(3) of the Act that their discharge will be sought if they do not pay retroactive dues or fees. (b) Demanding dues and fees of former members for working for an employer after their resignation from union I find it unnecessary to reach or pass on any other theory advanced by the General Counsel to provide additional support for her contention that Respondents' demands for back dues and reinstatement fees were violative of Sec. 8(bX)(XA) of the Act. 7 General Electric Company, supra. L1 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 the 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. 249 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership at a time when no such aforementioned union-security agreement was in effect or had become applicable. (c) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Section (7) of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Reimburse all field engineering employees, present and former, of NCR Corporation for all dues and reinstatement fees paid to Respondents after Respondents' unlawful demands therefor in December 1975, or January 1976, less rebates already paid, plus interest in the manner set forth in the "Remedy" section. (b) Rescind the assessments for dues and fees unlawfully charged field engineering employees of the NCR Corpora- tion and notify each employee in Respondents' respective jurisdiction by written communication of such rescission. (c) Post at their respective business offices copies of the attached notice marked "Appendix." 9 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by the appropriate representative of the respective Respondent Local, shall be posted by Respondents immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that such notices are not altered, defaced, or covered by any other material. (d) Deliver to the Board's Regional Director for Region 14 copies of the aforesaid notice for posting by the Employer at each of its locations involved herein, if the Employer desires to post said notices on bulletin boards customarily used for notices to employees at those locations. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith. 19 The appropriate local number will be inserted by the Regional Director on each notice. In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United Slates Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence, it has been decided that we, Local --- , affiliated with the Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, AFL-CIO, have violated the National Labor Relations Act and we have been ordered to post this notice. WE WILL NOT require employees subject to a union- security agreement authorized by Section 8(a)(3) of the Act to pay retroactive dues or fees under threat of discharge. WE WILL NOT demand dues and fees from former members because they worked for NCR Corporation after resigning from union membership at a time when no union-security agreement was in effect or had become applicable. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL rescind all notices, found unlawful by the National Labor Relations Board, to employees for dues and fees demanded for working at times no such dues or fees were required as a condition of employment. WE WILL reimburse any present or former field engineering employees for any retroactive dues or fees paid by him to us after we demanded same, less rebates already repaid, plus 6-percent interest. LOCAL --- , AFFILIATED WITH THE BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, AFL-CIO 250