Laundry Workers Local 3 (Virginia Cleaners)

LAUNDRY -WORKERS LOCAL 3 (VIRGINIA CLEANERS) Laundry, Dry Cleaning, Government and Industrial Service, Local 3, AFL-CIO and Association of East Bay, West Bay and Peninsula Dry Clean- ers; Crocker Cleaners; and G. F. Thomas, Inc. Cases 32-CB-1848 and 32-CB-902 (formerly 20-CB-27,1) 17 June 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER-AND DENNIS - On 12 February 1985 Administrative Law Judge Timothy D. Nelson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed limited cross- exceptions and a brief in answer to the Respond- ent's exceptions. The Board has considered the decision and the. record in light of the exceptions and briefs and has decided to affirm the= judge's rulings, findings, and conclusions and to adopt the recommended Order as modified. - The judge found that the Respondent violated Section 8(b)(1)(A) of the Act by refusing to accept resignations, 'threatening discipline proceedings for returning to work after resigning, bringing discipli- nary proceedings and imposing fines for postresig- nation refusals--to' honor the Respondent's picket line, and maintaining restrictions on the right to resign. We adopt.' The Respondent also filed a state-court suit against employees to collect fines levied against them. Although the judge recognized that the Re- spondent's position in the. suit is contrary to Board law, he relied on Bill Johnson's Restaurants v. NLRB, 461 U.S. 731- (1983) (the Board may not enjoin a pending state-court lawsuit, regardless of the plaintiff's motive, unless the suit lacks a reason- able basis in, fact or law) to dismiss the allegation that the Respondent's suit, .violated the Act. We re- verse. In Bill. Johnson's the Supreme Court observed that its holding did not, apply to a suit that "has an objective that is illegal under federal law," and gave as an example "Board orders enjoining unions from prosecuting court suits for enforcement of Member Dennis joins her colleagues in ordering the Respondent to cease and desist from maintaining the restriction on resignations because the complaint alleges unlawful maintenance of the constitutional provi- st_on and the record supports that allegation Compare Machinists 'Local 1414 (Neufeld Porsche-Audi), 270. NLRB 1330, 1336 fn 22 (1984), in which the complaint contained no such allegation As in Neufeld Porsche- Audi, however, Member Dennis considers it impracticable to order the Respondent Local Union to "expunge" a provision appearing in- the con- stitution of the parent International, which is not a party to this proceed- ing Instead, Member • Dennis would order the Respondent to notify its members-in writing that it will not enforce the restriction on resignations 697 fines that could not lawfully be imposed under the Act." 461 U.S. 737 fn. 5.2 We conclude that Bill Johnson's specifically -endorses finding the Respond- ent's. state-court action to be unlawful . The Re- spondent's fines - of employees who have resigned from the Union- could not lawfully be imposed under the Act. Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984); Machinists Local 1769 (Dorsey Trailers), 271 NLRB 911 (1984). Thus, the suit "has an objective that is illegal under federal law." Accordingly, we find that by com- mencing a state-court suit to collect fines imposed on employees after .they resigned from the Union, the Respondent violated Section 8 (b)(1)(A). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as- modified below and orders that the Re- spondent, Laundry,. Dry. Cleaning, Government and -Industrial Service, Local 3, AFL-CIO, San Francisco, California and environs, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(b) and re- letter the subsequent paragraphs. "(b) Restraining or coercing employees by com- mencing a court action and seeking to collect the fines described in paragraph 1(a)." 2. Substitute the attached notice for that of the administrative law judge .3 2 Fn 5 reads in pertinent part as follows It should be kept in mind that what is involved here is an employ- er's lawsuit that the federal law would not bar except for its alleged- ly'retaliatory motivation We are not dealing with a suit that is claimed to be beyond the jurisdiction of the state courts because of federal law preemption, or a suit that has an objective that is illegal under federal law [W]e have upheld Board orders enjoining unions from prosecuting court suits for enforcement of fines that could not lawfully be imposed under the Act, see Granite State Joint Board Textile Workers Union, 187 NLRB 636, 637 (1970), enforce- ment denied , 446 F 2d 369 (C A 1, 1971), rev'd 409 U S 213 (1972) [Additional citations omitted ] We conform the notice to the judge's recommended Order APPENDIX . NOTICE To MEMBERS POSTED ^ Y ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us- to post and abide by this notice. WE WILL NOT restrain or coerce employees who have resigned from, and are no longer members of, 275 NLRB No. 98 698 DECISIONS OF NATIONAL' LABOR' RELATIONS BOARD this Union in the exercise of the rights, guaranteed them by Section 7 of the Act by refusing to accept their resignations, by threatening such resignees with discipline for their postresignation conduct, and by, filing intraunion charges, conducting disci= plinary proceedings, and imposing fines against them because of their postresignation conduct in working for their employers during the strike that began on 10 July 1984. WE WILL NOT maintain in our governing docu- ments, or otherwise -give effect to, the restriction- on-resignation provision of article XI, section 24 in 'the constitution of our International set forth below: - A resignation or withdrawal from membership by any member shall not be effective unless written application for resignation or with- draw'al shall be made by the member and 'ap- .proved in -writing by the Executive' Board- of the- Local - Union; provided, further, that no resignation or withdrawal from membership of -a local union shall be 'effective or acted upon as to any member during the time that a strike by the local union is being conducted 'against the employer of the member: - : ` - .WE WILL NOT file, a court lawsuit and seek to collect fines levied on the, employees named below. WE, WILL NOT in any like- or related manner re- strain -or coerce employees I in the exercise of the rights guaranteed by Section 7 of the Act. - 'WE WILL rescind the 'fines we levied, on the em- ployees "named below for their conduct after we re- ceived their resignations" and - we ; will refund to them • any fine moneys they may, have ,paid to . this Union related to 'such postresignation conduct, with interest. - -. - _ - - Alicia Rivera Louise Robbins • _ - Rosemary Inger Angela Estephan Lillian Nears Sahinar Azuncan - Joan Tennent WE WILL expunge from our records and files all reference to -fines, -intraunion• charges, -or •discipli- nary proceedings against the above-named employ'- ees for conduct occurring after their resignations from the Union,'and notify them- in-- writing this: has been done. . - „ , . WE WILL • expunge. from - our , governing - docu= rnents the 'restriction-on' resignation. provision in the constitution' of, 'the,, International., AFL-CIO -set forth above. -WE WILL -notify the 'additional` employees -named below in writing that we are treating their resigna- tions as effective at the time we received them ;and that' we will' not threaten ' further or ' tale any disci= plinary action against them -for conduct after we received their resignations; - - Alicia -Rivera Rosemary Inger Lillian Nears Joan Tennent Louise Robbins Angela Estephan Sahinar Azuncan Mae Slater Janet Wiseman Lillian Jackson Karen Beckley - Mildred Retta Rebecca Oxford Earl Gilber Larry Barozzo Georgina Pepin Andrea Rachal Collin-Novick Georgia Mod Rose Pontout Eva Roybal Joe Davis 'Josiane Hoffman Led Dise Pepper Bittick Theresa Greenblat - - Anna Pappis • Bruce Hathaway • Maria- Sarra Ahmed Ibrahim Mahrouth Kazzoun Clara Johnson - - Depew McShaw Ruby Wells Roland Hernandez Alice-Jones Robert Abeyta , - Fernando Solis Tony Collins Zella King Maria' Aguilera - Juan Esquivel Po Kan Wong Helen Fortune Vance Cheatham Louise Garcia 'Annette Luis • Paul Daniels Joe Chavez - Sergio Gomez LAUNDRY, DRY CLEANING, GOVERN- - •MENT AND 'INDUSTRIAL SERVICE, LOCAL -3, AFL-CIO - ; DECISION - - - - - STATEMENT OF-THE•CASE' TIMOTHY D. NEISON, Administrative Law Judge. I heard these consolidated cases in trial at , Oakland, Cali- fornia, on December 12, 1984 . ' They arose from sepa- rate, timely, unfair labor practice charges against Laun- dry, Dry Cleaning, Government and Industrial Service, Local 3, -AFL ,CIO (the Union) filed,(in Case 32-,CB- 1848) on August , 9, and .(in Case 32-CB- 1902) on July 2. -,Following investigations,. separate complaints against the Union were issued . by Regional Directors for the San Francisco , and Oakland Regional Offices. Those com- plaints were consolidated for trial by order. of the Re- gional Director for Region 32, dated November 27.2 All dates hereafter are in 1984 unless otherwise noted 2 The; charges in , Case 32-CB- 1902 were initially investigated, under the supervision of the Regional Director for Region 20, the Board's-San Francisco Regional Office„who issued a complaint (styled Case 20-.CB- 6271) on August 14. The charges in Case 32-CB-1848 were investigated under the supervision of the Regional Director for Region 32, the Board's Oakland Regional Office, who issued a complaint on September 25. The General Counsel later authorized the-reassignment of the Region 20 case to Region 32,-with attendant substitution of docket numbers. LAUNDRY WORKERS LOCAL 3 (VIRGINIA CLEANERS) 699 The consolidated complaints commonly allege that the Union "restrained and coerced employees " in -the exer- cise of statutory rights, in violation of Section 8(b)(1)(A) of the National Labor Relations Act (the Act): More specifically, the Union is alleged to have threatened em- ployees that they would-not be permitted to resign.from membership and that they would be fined by the Union if they engaged in strikebreaking. And, in particular cases, the . Union is alleged to have violated Section 8(b)(1)(A) by refusing to treat as valid the membership resignations tendered by certain; employees and ;thereaf- ter (in a smaller class of cases) by'instituting and process- ing internal disciplinary proceedings against .certain em- ployees for their strikebreaking actions committed after they had tendered purported membership resignations. Finally, it is alleged that the Union broke the law when it filed civil suits , against- certain employees to collect un- lawfully imposed disciplinary fines. ._ - The Union duly- answered, and,, by its answer (as amended pursuant to 'a trial stipulation), it has admitted most of the facts relied on by the General Counsel, but has denied wrongdoing. The Union -raises two basic ' al- ternative defenses to the complaint which serve to identi- fy the principal issues for resolution. 1. The Union claims it was entitled , pursuant to its bylaws and certain provisions within the constitution of its International body (the International), to refuse to treat as valid any tenders of membership resignation made after its members had authorized a strike against the employers involved herein. Accordingly, the Union contends that the purported resignations tendered after the strike vote was taken were ineffective as a means of escaping the Union's disciplinary authority: ' 2. Alternatively, the Union maintains that even if it were not entitled to treat the tendered -resignations as in- effective due to their untimeliness, the purported. resigna- tions were ineffective (or, in the Union's words, were "void, ab initio") because they were induced by unlawful actions taken by the employers.- - - On the whole record, 3 I make these FINDINGS OF FACT - - 1. ISSUES A.'Background During times which concern us the union-represented employees of certain San Francisco Bay area laundry and' dry' cleaning establishments. Until ' July 23, those firms' had been members'of the Association of East'Bay, West -Bayand Peninsula 'Dry' Cleaners '(the-Association); an organization which existed' in part for the purpose of representing its employer-members on a group' basis in collective bargaining with the Union.4 Pursuant to that 8 Unless otherwise indicated, findings below derive from .the parties' stipulations -of fact as reduced to writing and received in evidence=as Jt Exh 57, or from other stipulations, admissions, or concessions of'counsel vanodsly -recorded during the trial proceedings - - ' ' ' , < <' " In calendar year 1983, the employer-members of the Association'col- lectively derived gross revenues exceeding $500,000, in the same period they collectively purchased and received goods or services which origi- nated outside California valued in excess of $5000--In addition, Virginia Cleaners, Inc, the employer of the seven employees whose discipline by relationship, the Union and the Association (on behalf of its employer-members) had been parties to a labor agree- ment effective by its terms from June 5, 1981, to June 1, 1984. By mutual agreement during negotiations for a suc- cessor labor agreement,' the parties extended the old agreement to July -1. B. The Strike Vote: The Subsequent Tenders of Resignation by Certain Members The Union,held membership meetings on May 31 and June 4 at separate locations, one in San Francisco, one in Oakland. The members at each meeting voted with virtu- al- unanimity to strike the Association, if necessary, if a satisfactory, agreement were not concluded before July 1.5 The possibility of a strike triggered employer counter- measures. These included the distribution to employees on-and after June-22 of written memoranda advising em- ployees, inter alia, that if they decided to work during the strike they would be vulnerable to disciplinary fines by the Union so long as they retained membership in the Union.-Those materials also contained specimens of let- ters which employees might send to the Union if they wished to achieve a severance of their membership tie .and-thus immunize themselves from union discipline for strikebreaking. -- At least seven such memoranda were made available between June 22 and July 3 to employees of the various employer-members of the Association, including to em- ployees of Virginia Cleaners. Inasmuch as those memos were not challenged by the Union as involving unlawful employer threats or inducements, I will not burden this decision by setting forth all. of their contents. I note simply.that most of the memos -contained express assur- ances against employer retaliation regardless whether the employees chose to join the strike or to retain their membership in "the Union. For example, the first such memorandum , dated June 22, states, inter alia: This letter is intended to make you aware - of your rights. We recognize that it is your individual right to make your own decision without your employer or your Union attempting to tell you what to do. We are not urging you either to remain a member of the Union or to resign from the Union . What you decide is strictly up to you. And another memorandum dated June 25 states in this regard: . - , the Union is a major focus of-this case,; is.a California corporation which, in calendar year 1983, derived gross revenues in excess of $500,000 and purchased and received goods or services which originated outside Cali- fointa°valued in excess 'of $5000 . Finally, Snows Cleaners, Inc , the em- ployer of , some other, employees, referred to herein,. derived gross reve- nues exceeding $500,000 in calendar year 1983 and in that period pur- chased and received more than, $50o0'worth 'of goods or services' origi- nating outside California,- Credited and undisputed testimony of the Union's secretary -treasurer Betty L 'Miller'.Miller testified further, and I find, that members "voted" for the,strike by rising from their seats Miller observed only one person refrain from rising in the San Francisco meeting (attended by about 60 members) and she observed no such dissent in the Oakland meeting (at- tended by about 150 members) - 700 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD .You should note that the federal law protects your rights to belong to unions and to support strikes or not to support strikes as, you- as an individual alone think is appropriate. You are assured that we, as your employer, wills not. discriminate against you in any way if you support a strike by Local 3 or if you do not support a strike by the Union.' As previously stated to you, the decision is strictly yours to make. The Union- also introduced into evidence a settlement agreement binding-on=several employers,'-including Vir- ginia Cleaners, which - purports' to dispose of certain unfair labor practice `charges in Case' 32-CA--6617 and, which contains a remedial 'notice by which the - settling employers` assure employees that they will•not, inter"alia,- "encourage or assist our employees to resign or to with- draw Their membership from the Union." The parties stipulated that -this aspect - of the settlement was intended to address certain specific conduct by an agent of an em= ployer and that' the settlement was "unrelated to the con- tents .of the employer -memoranda or` to-- the 'manner -in which those memos were-distributed: - •= On- June 28, five 'employees of' Virginia Cleaners signed and hahd- delivered'to -the Union letters -which-fol-' lowed -the'--format • contained in a specimen' which had been distributed by their employer- as part `of -the forego- ing "advice" campaign. 'These ' employees were: Alicia Rivera, Roseniary=.Inger, 'L;illian Nears;- 'Joan 'Tennent, and Louise Robbins-.,,' Each letter -contained the following''pertinent' lan- guage. - Laundry and Dry-Cleaning Union; Local .No. ,3 610 16th Street, Room. 421 Oakland, CA -94612 , Attention:"Ms. Betty - Miller-Secretary-Treasurer, Re. Resignation%` Financial'Core" Status Dear Union Officials: 't .This is' to - advise you that the: undersigned- wishes' to resign from Union membership effective- immedi- ately. • I intend to maintain "financial "financial core" status with the- Union f understand- in doing so that I may con- tinue working in the collective bargaining unit and that I will continue to be covered' by -the applicable provisions of"the collective bargaining agreement,' including any provisions requiring the payment,of monthly dues to the Union. It is also my understanding that, under this status,. I will not be subject to the Union's By-Laws nor,'its Constitution, and specifically will not be, subject :to_ Union fines or discipline. I also understand ° that;' under this status, I will not be allowed to 'vot'e on internal Union matters. If the foregoing is not acceptable to the Union; then this letter shall be treated as a complete 'resig- nation from Union membership, effective immedi- ately without and- independent of any obligation to maintain "f nancial core" status with the Union. On July 6 another employee of -Virginia Cleaners, Angela- Estephan, hand delivered a resignation letter to the Union.6 On July 10, the Union began picketing, at. three loca- tions of Virginia Cleaners (later extending such picketing in September to a recently opened Virginia. Cleaners outlet). A- seventh employee of that firm,. Sahinar Azun- can, crossed the picket line and worked on July 10 with- out having first tendered a resignation. At the' end of that day, however, Azuncan signed and hand delivered to the Union a resignation letter identical in format to the one signed by the original five employees.' - All of the seven employees previously named contin- ued thereafter-to work at Virginia, Cleaners during the strike and ,while that firm was being picketed. . C. The Alleged Unfair. Labor Practices • - The Union, through its agent and at William F. Crowell, subsequently replied by letter -to each of the seven employees named above.' Each such communica- tion'contained substantially identical language. The letter mailed to Alicia Rivera is illustrative of all such 'replies and I set forth below certain pertinent passages. from its text: Dear Ms. Rivera:., I -represent your Union , Laundry, Dry Cleaning, Government & Industrial Service Local' 3;" AFL- -CIO. This letter will acknowledge receipt of your - June -28, - 1984 letter advising that you desire to become a "core member" of the Union. Ms. Rivera, please be advised that you cannot become; a'-"core member" of Local 3 'because you are contractually bound to its By-Laws and to the Constitution- of the Laundry & Dry Cleaning ' Inter- national Union , AFL-CIO, which contain no provi- sion allowing you to take "core member" status. Said' Constitution and By-Laws constitute a binding contract, supported by valuable consideration, be- tween you , the Union and your fellow Union mem bers. Since your request for "core member" status is ineffective, pursuant to your request in said letter it will,be treated as a request to resign. Article XI, Section 24 of the International Con- stitution provides that a resignation is ineffective until 'approved in writing by the Local 3 Executive Board, and that no resignation shall be effective, or acted upon by the Executive Board,, during the time that a strike by Local, 3 is being, conducted against your employer,, Virginia Cleaners.. Please be adyised -'that-the Local 3. Executive Board, will be unable to act, upon, your resignation until after a strike has been called against Virginia Cleaners. Therefore, Local 3 is legally entitled to, must and, does hereby, deny your .said request. Local 3 has the .right-,to do 6 Unlike the specimen set forth above tendered by the original five em- ployees, Estephan's letter stated simply, "I hereby resign my membership in the Union effective immediately " ° The General Counsel disclaims any contention that the Union acted unlawfully'against Azuncan by any discipline which 'it imposed against her for strikebreaking on July 10, 1 e , before she resigned, . LAUNDRY- WORKERS LOCAL 3 (VIRGINIA CLEANERS), 701 I so under,the 1984 decision of the U.S. Court of Ap- peals for the Ninth Circuit in Machinists' Local 1327 v. NLRB (Dalmo Victor), 725 F.2d 1212, and your brother and sister Union-members have the moral right to expect you to abide by their Constitution and By-Laws. Article IX, Section 1 of the Local's By-Laws re- quires members to abide by both the -International Constitution and said - By-Laws. Section 7 of said Article provides, among other things, that you shall not ". ., . commit, or. incite an act or series of acts which would injure the best interests of the Local or International Union." Please also be advised, Ms. Rivera, that the Local 3 Executive Board has decid- ed to levy a fine against Union members who cross the picket line in the sum of $100 00 per day for each day they cross the picket line, and. that the Union intends to collect any such fines personally by court suit. Please, Ms., Rivera, do not foolishly. subject yourself- to such substantial monetary penal-• ties by crossing the picket line which will be estab- lished by your brother and sister Union members! they had worked behind the picket line at Virginia Article XI, section 24, of the Union's International constitution, referred to by Attorney Crowell in his let- ters to the seven employees in question,.states: -Section 24., A resignation or withdrawal from membership by any member- shall not, be- effective unless written application- for resignation or with- drawal shall be made by the member and approved in writing. by the Executive Board of- the local union; provided, . further, that no resignation or withdrawal from membership; of a local'.union-shall be effective or acted upon as to any member during the time that a strike by the local union is being conducted against the. employer of, the member. Article IX, sections 1 and 7, ; of the Union's,;bylaws, also referred to' in Attorney Crowell's letters, state, re- spectively: Section 1. Members must abide by the Interna- tional and Local Union Constitutions, and the'laws`, rules, regulations, policies, lawful orders and 'deci- sions of the International and Local Union Constitu- tions. - - Section 7. No member shall slander' the 'Interna-` tiorial- or local tinion or'any 'officer or member thereof;' attempt to cause secession, by 'this" local union from the International Union; -join an'organi- zation or association antagonistic to the idea Is'6f the International Union; circulate false reports` or -gross and-willful iriisrepresetitations about the 'honesty of officers of • the • local or- International Union;' advo- cate or' commit or 'incite' an -act "or 'S'eries ''of acts which would injure the best interests of the local-or International Union. On July 13, Attorney-Crowell wrote to the seven em- ployees stating that the Union's executive board had voted to fine each of them $100 per day for- each day Cleaners, stating in conclusion: -- This letter constitutes the legal notice to which you are entitled. Please remit your fine' to .Local- 3 for each such day you have crossed the picket line Otherwise, it will be necessary for Local 3 to-com- mence legal proceedings to collect same. This set of letters was apparently later viewed by the Union as premature-indeed, no formal internal charges had then been filed against the seven employees. It was only later, beginning on July 23, that each of the seven employees was formally notified that internal charges had- been lodged against her for having worked behind the picket line on and after July 10. Subsequently, fol- lowing written - notice to each of thef seven employees, the -Union conducted "Trial Board" proceedings on each of the charges. None of the seven employees attended these proceedings. On July 31 the Union's executive board found each employee guilty as charged, and so no- tified each of-them by.letter,- saying in that same letter that the Union would "commence legal proceedings for the collection of a fine-,in the amount of $ 100-per- day for each day such.member worked and continues to work behind Local 3's picket line.", On August 3, the Union filed and served on'each of the seven employees a civil ' complaint in a California court seeking collection of the 'disciplinary fines. The Union. has not- requested a trial date on -that action, how- ever. D. Miscellany The parties also stipulated, in substance, that 43 em- ployees (not previously referred 'to herein) submitted "resignation" letters using the specimen text' set forth earlier and that the Union: in each case, through Attor- ney Crowell, replied by denying those 'requests, using letters which .were the- same or substantially the same in content as the one written by Crowell to Alicia Rivera, quoted supra. The pertinent details of timing are set forth below,- together with the name of the employer of each such employee:-. : .. ' Employees= Employer Mae Slater Janet Wisemaii Lillian ' • Jackson Karen' z!Beckley' - f -- t Mildred, Retta- . t Rebecca -, Oxford i _• Earl Gilbert Crystal Larry ' Bai`ozzo • ' - ^A , - Georgina Borello Pepin • Andrea' Rachal Employee's Union's Request Response 6/23/84 6/30/84 6/25/84 6/27/84 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees Employer Employee's . Union's Request Response Collin Novick Virginia . Georgia Mod . Crocker 6/28/84 Rose Pontout Eva Roybal Joe Davis Josiane Hoffman Leo Dise Pepper Bittick Theresa - 11 Crystal G. F. Thomas. arson's Westlake 6/29/84 /30/84 7/3/84 6/84 Greenblat Sergio Gomez Anna Pappis Bruce Hathaway Maria Sarra Ahmed Ibrahim Mahrouth orella Sparkle 5/84 13/84 Kazzoun Clara Johnson Depew Sunshine /6/84 McShaw Ruby Wells " Roland - Hernandez Alice Jones • G. F.: Thomas Borello 7/12/84 7/18/1984 Robert Snow's 7/17/84 7/27/84 Abeyta Fernando Solis Tony Collins Zella King, Maria Aguilera Juan Esquivel 18/84 Po Kan -Wong Helen Fortune, Vance Cheatham Louise Garcia Annette Luis Paul -Daniels Joe Chavez i II. • ANALYSIS AND CONCLUSIONS A.,Jurisdiction The labor 'relations` Background as 'found above 'will allow me to conclude that' the employer-members of the Association had agreed to be bound "until July 23, 1984," as a multiemployer collective-bargaining unit. In- asmuch as the-agg'regate,bdsiness volumes of the employ- er-members of the Association for calendar year 1983 were shown to exceed the Board's discretionary stand- ards for retail 'operations, and were shown to involve, as well, the aggregate purchase of more than de minimis amounts of goods and services from outside California, I conclude that any complained-of actions by the Union occurring before July 23 were actions which implicated the operations of an employing entity "in commerce" (the Association) within the meaning of Section 2(6) and (7) of the Act. Accordingly, the Board's jurisdiction is properly asserted over all complained-of actions by the Union in the pre-July 23 period. Since the record shows that some of the Union's com- plained-of actions occurred on and after July 23 (discipli- nary proceedings against the'seven employees first dis- cussed; refusal'to honor resignations and threats of disci- plinary action against certain employees identified in findings in "Miscellany" section), the, basis for the asser- tion of jurisdiction in those instances may derive only from findings that the operations of the employers of those affected employees were independently operations which were "in commerce." For, in those latter cases, the record will 'not permit me to find that the employers herein continued after July 23 to authorize the Associa- tion to bargain on their group behalf. The record reveals that the only challenged actions of the Union which occurred on or after July 23 were ac- tions directed against employees either of Virginia Clean- ers or of Snows s Cleaners. Each of those employers was independently- shown to meet the Board's statutory and discretionary 'jurisdictional standards for retail operations in calendar year 1983. I thus find that the Union's actions in those cases likewise implicated the, operations of em- ployers "in ' commerce" and, accordingly, that the Board's jurisdiction is properly invoked in those cases as well. 8 B. The Legal Merits 1. General legal setting The general legal principles applicable to union disci- pline against employees are well known . Section 7 of the Net generally reserves to employees the right, inter alia, to "refrain from" activities supportive of a union: Section 8(b)(1)(A) of the Act, which is implicated by the Union's disciplinary actions herein, makes it unlawful for a union to "restrain or coerce" employees in the exercise of rights protected by Section 7. The "internal rules" provi- so to Section 8(b)(1)(A), however, expressly reserves to a union the right to make and enforce rules governing the conduct of its members. - In attempting to accommodate those facially inharmo- nious statutory commands, the Supreme. Court has said, generally, "Section 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no- policy Congress has imbedded-in the 8 As noted, reliance is placed on the business figures for calendar year 1983 for the employer-members of the Association in the aggregate, and on independent figures for the same penod for the respective operations of Virginia Cleaners and Snows Cleaners it is true that the pai-ties did not stipulate that the figures for calendar year 1983 were "representative" of the operations described , but, absent some showing (never made herein) that any of the affected businesses suffered dramatic declines in their 1984 business volumes, I presume that the state of their business af- fairs shown to have existed in 1983 continued to prevail during the penod with-which the complaint is concerned LAUNDRY WORKERS LOCAL 33 (VIRGINIA . CLEANERS) labor laws, -and is reasonably enforced against union members who are free to -leave the union and escape the rule." Scofield v. NLRB, 394 U.S.,423, 430 (1969): , Consistent with this general statement the Court has clearly pronounced that a union will not violate Section 8(b)(1)(A) when it imposes discipline against members for strikebreaking, done while they remain members. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195 (1967). And the Court has stated with equal clarity that a union will violate Section 8(b)(1)(A) when it seeks to dis- cipline an employee for strikebreaking done after that employee has lawfully resigned his membership: NLRB v. Textile Workers Local 1029, Granite State Joint, Board, 409 U.S. 213, 217 (1972). See also Machinists v. NLRB, 412 U.S.-84,88 (1973). 2. The "open question" The Supreme Court expressly left open, however, the question whether a union might lawfully, under the "in- ternal rules" proviso, make and enforce rules which re- strict the right of members to resign and thus, by such restrictions, tend to perpetuate the membership nexus which allows the union to discipline 'an employee- member for breach of a substantive union rule. 'Granite State, supra, 409 U.S. at 217; Machinists, supra, 412 U.S. at88. ' The Board has since come to grips with' that "open question," holding by plurality in Dalmo Victor-Ila that a union rule limiting its members' right to resign only .to nonstrike periods "constitutes an unreasonable' restric- tion" on that right (263 NLRB at 986), but 'articulating through dicta a new rule which would alloww'a union 'to prohibit a resignation from becoming effective 'for' a period not to exceed 30 days after the tender of such a resignation." Id. of 987. • As noted, the Court of Appeals. for the Ninth Circuit refused to enforce the board's Order in Dalmo Victor II and the Board has petitioned the Supreme Courti•for a writ of certiorari.' ° And, in the meantime, the' rationale underlying the Board's plurality opinion in Dalmo sVictor II has been wholly supplanted by the:decision of a newly constituted Board in Neufeld Porsche-Audi, 270-'NLRB 1330 (1984). There, the Board,- noting ' "respectfulz, dis- agreement with the Ninth Circuit['s]" opinion in•Dalmo Victor II, held flatly that "a union may note lawfully, -re- strict the- 'right of. its members to resign" (id. at 986)' and, relatedly, that a union violates Section 8(b)(1)(A) .when it seeks to discipline an employee for strikebreaking !done after the employee has resigned: Ibid.-.,at- 18.` See' also to same effect,"e.g., Machinists- (Motor ,Trucks);.273.:NLRB k50(1984).%, In summary, the- "open;question":is-the)subject'of_dis- agreement'between the Board and the Ninth: Circuit,, . as is made plain by a review of their respective opinions in Dalmo Victor IT, The question is, • moreover,;,,one on 9 Machinists Local 1327 (Dalmo Victor), 263 NLRB 984 1(1C82)1 e' f denied 725. F 2d 1212 (9th Cir 1984) (Board - petition for 6,ertioiaii pend- ing as of this writing) OW i')7 10 The Supreme Court has granted certiorari in another' case dealing with a union's constitutional restrictions on a member 's right to resign Pattern Makers v NLRB, 747 F'2d 57` (7th Cir .1983), enfg .265 NLRB 1332 (1983), cert ' granted l05 S Ct 3064 (1985); .703 which the Ninth Circuit and the Seventh Circuit 'are in disagreement (compare the opinions of those circuits in, respectively, Dalmo Victor II, supra, and Pattern Makers, supra). It is thus fair to state that 'the question remains "open" in the sense that there is a lack of harmony be- tween and among the Board and those circuits , particu- larly so where the Supreme Court has agreed to consider the question as it has been raised . in Pattern 'Makers, supra. But, for purposes of decision by a Board adminis- trative law judge, the question is not open; it became closed for my purposes when the Board decided Neufeld Porsche-Audi. As the Board unmistakably reiterated in Iowa BeefPackers, 144 NLRB 615 (1963): - It has been the Board's consistent policy for itself to determine whether - to acquiesce in the contrary views of a circuit court of appeals or whether, with due deference to the 'court's opinion, to adhere. to its previous holding until the Supreme Court of the United States has ruled otherwise: But it is not, for [an administrative law judge] to speculate ,as-'to what course the Board should follow where a cir- cuit court has expressed • disagreement 'with its views. On the contrary, it remains' the [administra- tive law judge's] duty to apply established' Board precedent which the Board or the Supreme Court has not reversed. Only by such, recognition I of the legal authority of Board precedent, will a"unifoim and orderly administration of 'a national act, such-as the-National Labor Relations Act„be achieved..'[Id. :. , at 61'6.] i «. r' Accordingly, while there are reasonable grounds Jor debate as to how the Supreme Court will ultimately,-re- solve the "open' question," it is not open to l me to do other than to apply the law as the Board has'handed it down to date. 3 The Union's defenses The Union's principal defense is that the resignations in question were ineffective because they ran afoul- of certain quoted restrictions on resignation within the- .In-ternational's constitution. Plainly, however, this defense is unavailing in the light of the Board's holding" in Neu- feld, Porsche-Audi; supra. i 2 Indeed, the , Union's `mere maintenance of those restrictions constituted -a violation of Section 8(b)(1)(A). Motor Trucks, supra' and'cases cited. And the Union's refusal to accept the resignations based on such unlawful restrictions likewise violated Sec- tion 8(b)(1)(A). Typographical Union, (Register Publishing), 270 NLRB" 1.3871(1984);'seealso:'NewspaperiGuild Local 3 (New York Times), 272 NLRB 338 (1984). Respondent's secondary-'defense-that the resignations were , void ab, initio ;due -to,-improper,i employer, influ- ence-is one formally articulated in ,its answer to, the i)S' iii 1 See also Waco, Inc., 273.NLRB`_746,,748<749 fn,.141(1984). 12 Ttlereis no contention by the Union that the resignation letters in question were ambiguous or otherwise somehowlfailed'to put the"Union on notice of the signer's unequivocal intention 'to resign Cf' Machinists District Lodges • 99 & 2139- (General. Electric),- 194 NLRB 938 (1972) ,Indeed,,-,the' Union„ through-.Attorney Crowell,=expressly "treated', all such, letters as `.request[s] to,resign ,, :, ,, ; 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint, but one which the Union has not addressed further on brief. As 'noted in findings, supra, the only probative evidence of record on this question13 is the body of memoranda issued by the employers containing advice as to employees' rights respecting resignation. Those communications repeatedly contain express assur- ances that the employers will not. retaliate against any employees who choose to retain their membership in the Union and/or to support the strike. Neither is there any independent evidence suggesting that any employer at- tempted "to ascertain whether employees will avail themselves of this right" nor that any employer "other- wise create[d] a situation where' employees would tend to feel peril in refraining from [resigning]." See R. L. White Co., 262 NLRB 575, 576 (1982). Cf. Foothills Food, 273 NLRB 63 (1984), and cases cited at 64 fits. 8 and 10. Accordingly, there was no coercion inherent in the written "advice" -memoranda furnished to employees who exercised their right to resign and, therefore, the Union has, not made a factual record which would sup- port its claim that the resignations in question were "void',' because they were involuntary.14 -4. The legality of the Union's collection suits. The General Counsel summarily alleges that it was un- lawful for the Union to have instituted a civil suit for collection of the disciplinary fines and therefore seeks by way of remedy, inter alia, that the Union be ordered to "withdraw' or have'dismissed -its court action .. . to col- lect the fines imposed." The General Counsel does not cite any authority for these claims and they are rendered dubious by the Supreme Court's decision in Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983). In Bill Johnson's Restaurants, the Court rejected as "untenable" the Board's argument that the , Board may enjoin the prosecution of any lawsuit filed by an employ- er or union (no matter how factually or ' legally well founded) where the suit is motivated, in fact, by , plain- tiff's desire to retaliate against an employee's exercise of a • Section 7 right. Rather, said the Court, citing first amendment considerations, "[T]he filing . . . of a well- founded lawsuit may not be enjoined as an unfair labor practice, 'even if it would not have been commenced but for the plaintiff's desire to retaliate against the defendant for exercising rights' protected by the Act." Id. at 743. The `Court went on to hold, however, that first amend- ment considerations were not implicated by the' filing of "sham" or "baseless" lawsuits motivated by retaliatory considerations traceable to the exercise by the defendant of ' Section 7 ri ghts.. Accordingly, said.the Court, "[W]e hold that it is an enjoinable unfair labor practice to pros ecute- a, baseless lawsuit with the intent of retaliating The settlement agreement in Case 32-CA-6617 introduced by the Union is not competent evidence that any employer agent did anything- let alone anything -wrong -Southwest Chevrolet Corp, .194 NLRB 975 (1972) _ •i ' • - . 14 I do not reach the question whether improper employer influence might vitiate the effectiveness of otherwise plain resignations-and thus privilege the Union in refusing to honor them Cf Sheet Metal Workers Local •170 (Able Sheet Metal•Products), 225 NLRB 1178,'1181 (1976), Ma- chinists Local 758 (Menasco, Inc), 267 NLRB 1147, 1158 (1983). against an employee for the exercise of rights protected by Section 7 of the NLRA." Id. at 744.' Addressing the question how the Board is to deter-' mine whether the lawsuit is "baseless,"' the Court held that where there are genuine issues of fact or law in- volved in the suit, the Board must refrain from prosecut- ing the plaintiff-for an unfair labor practice until the law-. suit has been decided. Id. at 746, 747. Elaborating on the proper approach where the principal issue in the lawsuit is a legal one, the Court stated: While the Board need not stay its hand if the plain- tiffs position is plainly foreclosed as a matter of law or is otherwise frivolous, the Board should allow such issues to be decided by the state tribunals if there is any realistic chance that the plaintiffs legal theory might be adopted. [Ibid., emphasis added.] I believe that the Court's general admonitions in Bill Johnson's Restaurants require the Board to stay its hand with respect to the Union's civil suits for collections of the fines. Even if the state court having jurisdiction ' over the Union's collection suits believed itself bound to apply Federal labor law or policy in disposing of the suits, it is man ifestly unclear at this historical point exactly what that' Federal law or policy is. As noted, supra, the ques- tion "left open" by the Supreme Court, although subse- quently decided by the Board, is one, on which two courts of appeals have differed and is one pending certio- rari review by the Supreme Court.15 Plainly, therefore, the Union's position in-the civil suit-while contrary to Board law-is not "baseless" within the meaning of Bill Johnson's Restaurants, supra. Considering, moreover, that the General Counsel has not deemed the question to be worthy of any legal argument on brief, I would not rec- ommend that the. Board fmd the Union's civil collection suits to be violations of Section 8(b)(1)(A) or that the Board seek to enjoin the maintenance of those suits. .Based on the foregoing , I reach these summary - CONCLUSIONS OF LAW 1. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 2. • By the acts. and conduct set forth below -and by each -of the acts 'the Union has restrained and coerced employees of employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act: a. Refusing to accept resignations tendered by the fol- lowing-named' employees and threatening them, with dis- cipline if-they engage in strikebreaking after resigning: - Alicia Rivera; - • Theresa Greenblat Rosemary Inger Anna Pappis . Lillian Nears Bruce Hathaway is It is not at all clear in any case that the state court would -need to reach the "open" question in Federal labor law The state court might conceivably decide, for example, based solely on reference to the lan- guage in relevant constitutional -provisions that the Union's "contract" with the members did not preclude the-members ' resigning at any point before the strike actually began LAUNDRY WORKERS LOCAL 3 (VIRGINIA CLEANERS) 705 Joan Tennent Louise Robbins Angela Estephan Sahinar Azuncan Mae Slater Janet Wiseman Lillian Jackson Karen Beckley Mildred Retta Rebecca Oxford Earl Gilber Larry Barozzo Georgina Pepin Andrea Rachal Collin Novick Georgia Motl Rose Pontout Eva Roybal Joe'Davis Josiane Hoffman Leo Dise Pepper Bittick Maria Sarra Ahmed Ibrahim, Mahrouth Kazzoun Clara Johnson Depew McShaw Ruby Wells Roland Hernandez Alice Jones Robert Abeyta Fernando Solis Tony Collins Zella King Maria Aguilera Juan Esquivel Po Kan Wong Helen Fortune Vance Cheatham Louise Garcia -Annette Luis Paul Daniels Joe Chavez Sergio Gomez heed-California Co.,, 268 NLRB 311 (1983); but see-Neu- feld Porsche-Audi, at supra, 1330, 1334.17.- On these findings of fact and conclusions of law and on the entire record-, _I issue the following .recommend- ed1s . b. Bringing internal union charges, conducting discipli- nary proceedings, and imposing fines against ' the- follow- ing employees for strikebreaking,done after they had re- signed: . Alicia Rivera Joan Tennent' Rosemary Inger Louise Robbins Lillian Nears . Angela Estephan Sahinar Azuncan c. Maintaining rules which restrict employees' right to resign from membership by adopting and incorporating by reference into its official membership oath the restric- tions on resignation contained in article XI, section 24, of its International constitution. - 3. The Union has not independently violated Section 8(b)(1)(A) by filing civil court actions to collect fines against the above-named employees. ' THE REMEDY Having found that the Union engaged in unfair labor practices violating Section 8(b)(1)(A), I recommend that the Union be ordered to cease and desist therefrom as set forth below and that it take certain affirmative, action -to effectuate the purposes and policies of the Act. Accord- ingly, the recommended Order directs the Union to refund to Rivera, Inger, Nears, Tennent, Robbins, Este- phan, and Azuncan'6 any moneys they may have paid as a result of the fines imposed against them, with interest computed in the manner- prescribed in Florida Steel Corp., 231 NLRB 651 (1977). In addition the Union _is or- dered to remove from its records all reference to the un- lawful disciplinary action herein, and further to` expunge from its governing documents and constitution the- re- striction-on-resignation provision found invalid. Lock- 16 The refund order shall not apply to any fine payment made by Azuncan relating to her discipline for strikebreaking on July 10, i e , before she resigned ORDER The Respondent, Laundry, Dry Cleaning, Govern- ment and Industrial Service, Local 3, AFL-CIO, San Francisco, California, and environs, its officers, agents, and representatives, shall _ 1. Cease and desist from (a) Restraining or coercing employees who have re- signed from, and are no longer members of, the Union in the exercise of the rights guaranteed them by Section 7 of the Act by refusing to accept their resignations, by threatening such resignees with discipline for their pos- tresignation conduct, and filing intraunion charges, con- ducting disciplinary proceedings, and imposing fines against them because of their postresignation conduct in working at their employer during the strike which began on July 10, 1984. (b) Maintaining in its governing documents the restric- tion-on-resignation provision of article XI, section 24 in the constitution of the Union's International body set forth below: A resignation or withdrawal from membership by any member shall not be effective unless written ap- plication for resignation or withdrawal shall be made by the member and approved in writing by the Executive Board of the Local Union; provided, further, that no resignation or withdrawal from membership of a local union shall be effective or acted upon as to any member during the time that a strike by, the local union is being conducted against the employer of the member. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the fines levied against Alicia Rivera, Rosemary Inger, Lillian Nears, Joan Tennent, Louise Robbins, Angela Estephan, and Sahinar Azuncan because of their postresignation work for Virginia Cleaners, Inc., '7 Here, as in Neufeld Porsche-Audi, supra, the substantive restriction on resignation maintained by the Union is to be found only in the consti- tution of the International, which is not 'a party respondent herein In Neufeld Porsche-Audi, the, Board-said , regarding its expungement order' In doing so, we are not-ordering that the parent International, which is not a party to this proceeding , expunge the offending provision from its constitution Rather, we are only ordering the Respondent to expunge the provision from its governing documents including such documents of the International that the Respondent may have incorporated by reference and-adopted as its own. The recommend- ed Order contemplates the same approach 1 s If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and refund to them any moneys they ey may have paid pur- suant to those fines,-with interest.` - •' (b) Remove from •its-records .and,files -all reference's to fines, intraunion . charges,: on, disciplinary .' proceedings against, the above-named -employees for conduct occur- ring after their resignations from -the ,Union, and, notify' them in writing this has been done. - (c), Notify ,,the' additional `employees named below in writing - that the Union has treated their resignations as effective -at the time they were received by the' Union' and thatthe"Union will 'not' threaten'them further with, or take, "any -disciplinary, action-'against' them for strike- breaking after' their resignations - were received -by the Union. Alicia Rivera Theresa Greenblat Rosemary :Inger , Anna Pappis -Lillian Nears Bruce Hathaway Joan 'Tennent' '' - -' Maria Sarra• Louise Robbins Ahmed Ibrahim -Angela :Estephan = . Mahiouth -Kazzoun ,;;'Sahinai'Azuncan `, ',-,,Clara Johnson- Mae Slater, .,r •r : = gDepew McShaw, Janet Wiseman ; Ruby:Wells:- .:. , Lillian Jackson ., Roland,Hernandez Karen Beckley ' , - Alice Jones ' Mildred Retta Robert Abeyta ' Rebecca Oxford ' ' -Fernando Solis Earl" Gilber 'Tony Coiling"", ' - Larry •Barozzo !--t-°=.rr .Zella-King-'-- Georgina Pepin Maria •Aguilera : s } Andrea Rachal a. " ( Juan 1Esquivel .. Collin-Novick ,^ ,;.• •Po,Kan--Wong - ,Georgia-Motl _ , Helen Fortune, •t , ^. _ - i 1:X1_ . 'z;,, r; r• :i, _ rem. __,. ', ^' .I3.. .s- ^f•' •t'_.•li:...^ .mil _.:t',., ,^', , I:t::j ..'it .ii . "^11:' :9,i1 _:,iy?• ^i.;tf^t: 1'or^s - :{::: _ `'i; Rose 'Pontout Eva Roybal' Joe Davis Josiane Hoffman Leo Dise Pepper Bittick Vance Cheatham' Louise Garcia Annette Luis Paul Daniels Joe Chavez Sergio Gomez (d) Remove from its governing documents the restric- tion-on-resignation provision in the constitution ' of the Union's International set forth above. - (e) Post at its business office and other places where notices to its members are customarily posted copies of the attached notice marked "Appendix.""' Copies of the notice, on forms-provided by the Regional Director for Region 32, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately, upon receipt and maintained for 60 con- secutive days in conspicuous places 19 including all places where notices to. members are customarily posted. Reasonable steps -shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (f) Sign and return to the Regional Director sufficient copies of the notice for posting by employers of affected employees herein, if willing; at'all places where notices to employees are customarily posted. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Union has taken to•comply., 19 If 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 Na- tional Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board '• - - `