Carpenters District Council For Seattle, King County And Vicinity

530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters District Council for Seattle, King County and Vicinity and Tullus Gordon Construction, Inc. Case 19-CB-5040 19 November 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 19 November 1984 Administrative Law Judge Jerrold H. Shapiro issued the attached deci- sion. The General Counsel filed exceptions and a supporting brief and the Respondent filed a brief in answer to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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 only to the extent consistent with this Decision and Order. The essentially undisputed facts are set forth fully in the judge's decision. The Employer is a construction company. The Respondent represents carpenters working for the Employer. Sam Visko- vich became a member of the Respondent's Local 1289 in 1982 and was employed as a carpenter for the Employer from September 1983 through March 1984. On 14 October 1983,1 following the expiration of a collective-bargaining agreement be- tween the parties, the Respondent called a strike against the Employer and set up a picket line. One day before the strike began the Employer distribut- ed a memo to employees which advised them that if they joined the upcoming strike the Employer would first use temporary replacements to fill their jobs and if by 27 October employees were still striking, these temporary replacements would be converted to permanent status. The memo also ad- vised employees that if they wanted to work during the strike they could avoid union discipline by taking the following action: You may become a "dues paying member only." What this means is that your only rela- tionship with the union will be to continue to pay dues rather than to participate as a full member. You will not be able to attend union meetings or vote at union elections. However, in return, you may not be fined, penalized, punished or expelled for working behind a picket line as long as you continue to tender uniformly required initiation fees and dues. 1 Dates herein refer to 1983 unless designated otherwise Attached to the memo was a draft of a letter which employees could send to the Union if they chose to follow this course. On the morning of 14 October Viskovich hand- delivered to Local 1289 and the Respondent's exce- cutive secretary Richard Hart a letter reading, in part, as follows: I, Sam Viskovich, do hereby change my union membership status to "Financial Core Mem- bership" also known as "Dues Paying Only Membership" in accord with NLRB v. Hershey Food Corp. . . : and other Federal Statutory and Administrative Law. This change is effec- tive immediately. I shall continue to tender to the union the regular and periodic dues re- quired of me. It is my understanding that ef- fective immediately I will not be subject to union fines or assessments if I choose to cross a picket line. Hart told Viskovich that the Union did not recog- nize this type of letter and asked him why he did not just resign from the Union. Viskovich replied that he was not going to resign. He asked Hart, "What about the Hershey letter?" Hart repeated that the Union did not recognize it and advised Viskovich that he should do what he had to do and that the Union would do what it had to do. At that point Viskovich left the Respondent's office, crossed the Respondent's picket line, and went to work for the Employer. On 17 October the Respondent notified Visko- vich that he was charged with violating the Re- spondent's constitution and bylaws by crossing a picket line during an authorized strike and working behind it. Following a hearing on these charges the Respondent found Viskovich guilty, fined him $2000, and told him that failure to pay the fine would result in expulsion from membership. The complaint alleges that the Respondent vio- lated Section 8(b)(1)(A) by bringing charges against and fining Viskovich after he tendered his resignation from the Union. The judge found that when Viskovich crossed the picket line and re- turned to work he was still a member of the Re- spondent and was therefore still subject to its rules and disciplinary measures. The judge reasoned that by telling Hart, "I am not going to resign," Visko- vich expressed an intent to remain a member of the Respondent, a position contrary to the message he conveyed in his letter. He concluded that absent a clear and unequivocal expression of intent to resign Viskovich remained a full member, amenable to the Respondent's internal disciplinary measures. Under these circumstances the judge found that the Re- 277 NLRB No. 19 CARPENTERS SEATTLE COUNCIL (GORDON CONSTRUCTION) 531 spondent did not violate the Act by subjecting Vis- kovich to discipline. He dismissed the complaint. We disagree with the judge's determination that Viskovich's intent was unclear and that he re- mained susceptible to the Respondent's internal dis- cipline.2 Instead we find that Viskovich's letter clearly and unequivocally described his intent to limit his affiliation with the Respondent to the pay- ment of prescribed fees and dues, placing him out- side the ambit of the Respondent's authority to fine him, and that the Respondent's sanctions on his subsequent actions violate the Act. Our conclusion in this regard is supported by our decision in Carpenters Local 470 (Tacoma Boat- building).3 In that case employees delivered letters to their unions advising them that they were changing their membership status from full to fi- nancial core membership. These letters also con- tained the statement that they were not resigning from the unions. The Board there held that these letters were sufficiently clear to apprise the unions that the employees were resigning from full union membership so as to immunize them from possible disciplinary measures for subsequent actions con- trary to union rules. In that case, as here, it is nec- essary to distinguish the concepts of full member- ship and financial core membership. As described in Hershey Foods Corp.,4 financial core membership permits an employee to maintain a dues-paying as- sociation with the union that will protect him against the threat of discharge under Section 8(a)(3) of the Act when the collective-bargaining agreement contains a union-security provision. The legitimacy of such an affiliation was first recog- nized in Union Starch & Refining Co.5 If the desig- nation of financial core or dues paying only mem- bership is to impart any significance then it must be recognized that it does not rise to the level of full membership for all purposes, but rather is a limited affiliation which excludes the employee from cer- tain rights accorded to full members and also re- moves him from the reach of union fines.6 Accord- 2 The judge relied heavily on Viskovich's oral statement that he was not going to resign Contrary to the judge, we find that Viskovich's remark is entitled to little weight, as he made it after the Respondent's executive secretary Hart told Viskovich that the Respondent would not recognize his written request to change his membership status to that of financial core member Furthermore, immediately after making the remark, Viskovich asked, "What about the Hershey letter9" In sum, both before and after making the statement in question, Viskovich expressed a desire to change his membership status. Contrary to the judge, we do not rely on Viskovich's testimony at the hearing concerning his subjective motivation for his conduct. The ques- tion before us is not why Viskovich took the action he did, but whether his communications to the Respondent expressed a clear and unequivocal intent to change his membership status to financial core member 3 277 NLRB 513 (1985) 207 NLRB 897 (1973), enfd. 513 F 2d 1083 (9th Cir 1975) 87 NLRB 779 (1949), enfd. 186 F 2d 1008 (7th Cir 1951) 6 Pattern Makers League P. NLRB, 473 U S 95, 106 fn. 16 (1985) ingly, we find that because Viskovich notified the Respondent of his change in membership status prior to crossing the picket line and returning to work, the Respondent's bringing charges and im- posing a fine against him constituted an unlawful restraint on his Section 7 right to refrain from union activity in violation of Section 8(b)(1)(A) of the Act. REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices within the meaning of Section 8(b)(l)(A) of the Act, we shall order it to cease and desist there- from'. We shall order the Respondent to rescind the unlawful charges and fine, expunge all references to them from its records, and notify Sam Viskovich in writing of the recision and expunction. We shall also order the Respondent to refund any moneys paid as a result of the fine imposed, plus interest as computed in Florida Steel Corp.., 231 NLRB 651 (1977). We shall also order the Respondent to post an appropriate notice to members. CONCLUSIONS OF LAW 1. Tullus Gordon Construction, Inc. is an em- ployer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Carpenters District Council for Seattle, King County and Vicinity is a labor organization within the meaning of Section 2(5) of the Act. 3. By processing internal union charges and im- posing fines against Sam Viskovich, an employee of Tullis Gordon Construction, Inc., for activities in which he engaged subsequent to his resignation from full union membership, even though he con- tinued to agree to tender dues and fees, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board orders the Respondent, Carpenters District Council for Seat- tle, King County and Vicinity, its officers, agents, and representatives, shall 1. Cease and desist from (a) Processing internal union charges and impos- ing or collecting fines against Sam Viskovich, an employee of Tullus Gordon Construction, Inc., for activities he engaged in subsequent. to his resigna- tion from full union membership even though he continued to agree to tender dues and fees. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Rescind all charges and fines imposed on Sam Viskovich for activities in which he engaged subse- quent to his resignation from full union member- ship and refund to him any moneys he may have paid as a result of the imposition of such fine in the manner set forth in the remedy section, of this deci- sion. (b) Expunge from its records all references to the unlawful charges and fine and notify Sam Visko- vich in writing that all charges and the fine im- posed against him have been rescinded and all records have been expunged. (c)' Post at its business office and meeting halls copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Re- gional Director for Region 19, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places '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 covered by any other material. (d) Sign and return to the Regional Director for Region 19 sufficient copies of the notices for post- ing by Tullus Gordon Construction, Inc., if willing, at all places where notices to employees customari- ly are posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 7 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board," APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 process internal union charges and impose or collect any fines against employees of Tullus Gordon Construction, Inc: for activities in which they engage subsequent to their resigna- tion from full union membership even though they continue to agree to tender dues and fees. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL rescind all charges and fines imposed on Sam Viskovich for activities in which he en- gaged subsequent to his resignation from full union membership and WE WILL refund to him any moneys he may have paid in such fines, plus inter- est. WE WILL expunge all references to the unlawful charges and fine from our records. WE WILL notify Sam Viskovich in writing that all unlawful charges and fine have been rescinded and that all references to such actions have been expunged from our records. CARPENTERS DISTRICT COUNCIL FOR SEATTLE, KING COUNTY AND VICINI- TY Martha A. Barron, for the General Counsel. Christine M. Mrak (Mrak and Blumberg), for the Re- spondent. Judd H. Lees (Williams, Lanza, Kastner & Gibbs), for the Charging Party. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge. The hearing in this case, held on July 19, 1984, is based on a charge filed January 10, 1984, by Tullus Gordon Con- struction, Inc. (the Employer) against Carpenters District Council for Seattle, King County and Vicinity (Respond- ent)1 and upon an amended complaint issued June 19, 1984, by the General Counsel of the National Labor Re- lations Board (the Board), alleging that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the National Labor Relations Act (the Act) by bringing charges against and imposing a fine on Sam Viskovich, an employee of the Employer, for having crossed and worked behind Respondent's picket line despite the fact that Viskovich had previously ten- dered his resignation from membership in Respondent. Respondent's answer denies the commission of the al- leged unfair labor practices. On the entire record, 2 from my observation of the de- meanor of the witnesses, and having considered the posthearing briefs, I make the following ' Respondent's name has been amended to reflect its correct name as shown in the record 2 Respondent's motion to correct the transcript is granted CARPENTERS SEATTLE COUNCIL (GORDON CONSTRUCTION) 533 FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED The Employer, Tullis Gordon Construction, Inc., is a State of Washington corporation with its principal office and place of business in Seattle, Washington, where it is engaged as a contractor in the building and construction industry. During the 12-month period immediately prior to the issuance of the amended complaint herein, which period is representative of all times material herein, the Employer, in the course and conduct of its business oper- ations, purchased and caused to be transferred and deliv- ered to its facilities within the State of Washington goods and materials valued in excess of $50,000 directly from sources outside the State or from suppliers within the State which in turn obtained such goods and materials directly from sources outside the State. Respondent admits, and I find, that the Employer is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent Carpenters District Council for Seattle, King County and Vicinity admits, and I find, that it is a labor organization within the meaning of Section 2(5) of the Act. ther advised the employees that in order to avoid being fined or otherwise disciplined by their union for continu- ing to work during the strike, the employees might do the following: You may become a "dues paying member only." What this means is that your only relationship with the union will be to continue to pay dues rather than to participate as a full member. You will not be able to attend union meetings or to vote at union elections. However, in return, you may not be fined, penalized, punished or expelled for working behind a picket line as long as you continue to tender uniformly required initiation fees and dues. Attached to this memo was a draft of a letter which the Employer - suggested that employees who desired to follow the above-described course of conduct send to Respondent by certified mail. On the morning of October 14, 1983, before he went to work, Viskovich hand-delivered to Carpenters Local 1289 and Richard Hart, Respondent's executive secre- tary, a letter which incorporated verbatim the language of the Employer's above-described draft letter. Visko- vich's letter, which was addressed to Carpenters Local 1289's financial secretary, reads, in pertinent part, as fol- lows: III. THE UNFAIR LABOR PRACTICES A. The Evidence3 The Employer is a contractor in the building and con- struction industry. Respondent, during the time material, represented a unit of the Employer's carpenters. Sam Viskovich was employed by the Employer as a carpenter from September 1983 through March 1984 and at the time of the hearing in this case. In 1982, Viskovich became a member of Carpenters Local Union No. 1289, an affiliate of Respondent. In 1983, when Respondent, as described infra, engaged in a strike against the Employer, Viskovich was still a member of that union. Respondent and the Employer were parties to a col- lective-bargaining contract which expired prior to Octo- ber 1983.4 On October 114, 1983, Respondent called a strike against the Employer and began picketing the Em- ployer's jobsite at the University of Washington laundry facility. On October 13, 1983, the Employer distributed to its employees on that jobsite a memo from the Employer's president which, in pertinent part, informed the employ- ees that if they decided to support Respondent's strike, the Employer would at first employ "temporary" striker replacements and, if the strikers did not return to work by October 27, 1983, the Employer would convert the "temporary" to "full-time" striker replacements ; and fur- s The evidence is undisputed and, for the most part, is based on the parties' stipulation. 4 'There is no evidence concerning the terms of this contract, in par- ticular where it contained a union-security provision. In any event, if the conrtact did include a union-security provision, this provision did not sur- vive the expiration of the contract. Bethlehem Steel Co., 136 NLRB 1500, 1501-1502 (1962) RE: Change in Status to "Dues Paying Only" Membership Dear Mr. Miller: 1, Sam Viskovich, do hereby change my union membership status to "Financial Core Membership" also known as "Dues Paying Only Membership" in accord with NLRB v. Hershey Food Corp., 513 F.2d 1083, 89 LRRM 2126 (9th Cir. 1975) and other Fed- eral Statutory and Administrative Law. This change is effective immediately. I shall continue to tender to the union the regular and periodic dues required of me. It is my understanding that effective immedi- ately I will not be subject to union fines or assess- ments if I choose to cross a picket line. Hart, when Viskovich handed him this letter, told Visko- vich that "this is a Hershey letter. The Union doesn't recognize this." Viskovich asked Hart why the Union did not recognize a Supreme Court ruling. Hart asked, "Why don't you just resign from the union?" Viskovich responded by stating, "I am not going to resign from the union. What about the Hershey letter?"5 Hart replied, "We don't recognize that. You do what you have to do, and we'll do what we have to do." Viskovich left Re- spondent's offices and went to the Employer's jobsite where he crossed Respondent's picket line to go to work. Thereafter, on October 17, 1983, Respondent notified Viskovich by letter that he was charged with crossing a picket line and working for the Employer during an au- 5 Viskovich testified that the reason he did not simply resign from Re- spondent was because he is a carpenter by trade and wants to retain his membership in the Carpenters Union. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thorized strike, in violation of the constitution and bylaws of Respondent's International Union, the United Brotherhood of Carpenters and Joiners of America (the International Union). Viskovich was also informed that these charges would be heard before Respondent's exec- utive committee on October 27, 1983. Subsequently, on November 4, 1983, Respondent noti- fied Viskovich by letter that there would be a trial con- cerning this matter on November 17, 1983. The result of this trial was that Respondent found Viskovich guilty of the charges and imposed a $2000 fine against him. On December 20, 1983, Respondent, by letter, notified Vis- kovich of the verdict and advised him that under the International Union's constitution if a member fails to pay a fine within a certain time period, his or her name shall be stricken from membership, except in those cases where an appeal was pending. Viskovich filed a timely appeal with the International Union in which he chal- lenged the validity of the fine. B. Discussion 1. Respondent urges that the complaint should be dis- missed because the Charging Party herein is an "interest- ed employer" who financed and participated in this pro- ceeding within the meaning of § 101(a)(4) of the Labor Management Reporting and Disclosure Act, 29 U.S.C. § 401' et seq. (LMRDA), which in pertinent part reads as follows: Protection of the right to sue No labor organization shall limit the right of any member thereof to institute an action in any court, or in a proceeding before any administrative agency. . . . And provided further, That no interest- ed employer or employer association shall directly or indirectly finance, encourage, or participate in, except as a party, any such action, proceeding, ap- pearance, or petition. Respondent acknowledges that the, above-described pro- viso to section 101(a)(4) insofar as it expressly permits "an interested employer" to finance, encourage, or par- ticipate in a proceeding before any administrative agency "as a party" appears to sanction the Employer's role as the Charging Party in the instant proceeding. However, Respondent urges that an unfair labor practice charge filed by an interested employer, such as the Employer, which concerns purely internal matters between a labor organization and its members violates the policies and objectives of the LMRDA and that because of this the Board should accommodate its administration of the Na- tional Labor Relations Act to the purpose of the LMRDA by declining to process the instant charge. I disagree for the following reasons. Section 603(b) of the LMRDA provides in pertinent part that "nothing contained in Title I . . . shall be con- strued to . . . affect the rights of any person under the National Labor Relations Act." The National Labor Re- lations Act places no limits upon who may file unfair labor practice charges, providing in Section 10(b) of the Act only that "[w]henever it is charged that any person has engaged in ... [an unfair labor practice], the Board .. . shall have power to issue . . . a complaint." See generally Television & Radio Broadcasting Employees Local 804 (Triangle Publications), 135 NLRB 632, 632- 633 (1962). Section 102.9 of the Board's Rules and Regu- lations provides that "[a] charge that any person has en- gaged in or is engaging in any unfair labor practices af- fecting commerce may be made by any person [emphasis added]." Section 2(1) of the Act, in turn, defines "person" to include, inter alia, "corporations." Here the record shows that the Employer is a corporation; ac- cordingly, it could properly file the instant unfair labor practice charge. Moreover, pursuant to Section 102.38 of the Board's Rules and Regulations and Section 101.10 of the Board's Statements of Procedure, the Employer had the right to participate fully in the prosecution of its charge once the complaint herein was issued. As a matter of fact, the law is settled that charging parties, such as the Employer, have standing in unfair labor prac- tice proceedings and are entitled to be heard. Auto Work- ers Local 283 v. Scofield and Auto Workers Local 133 v. Fafnir Bearing Co., 382 U.S. 205 (1965). The aforesaid circumstances-the Employer's right under the Act and the Board's Rules and Regulations to file the instant charge, the fact that the LMRDA specifi- cally provides that nothing contained in Title I of the LMRDA "shall be construed to . . . affect the rights of any person under the National Labor Relations Act," and the fact that the second proviso to section l01(a)(4) of the LMRDA expressly permits an interested employer to finance, encourage, or participate in a proceeding before the Board "as a party"-persuade me that Re- spondent's contention that the complaint should be dis- missed because the charge upon which it is based was filed in derogation of the objectives of the LMRDA is without merit. II. As described in detail supra, Viskovich, on October 14, 1983, told Respondent's representative Hart that ef- fective immediately he wanted to change his union mem- bership status from "full" to "financial core" member- ship, 'which he explained was also known as "dues paying only membership." Hart answered by stating that Respondent did not recognize that type of membership, and suggested that Viskovich instead just resign from Respondent. Viskovich replied, "I am not going to resign from the union," and repeated his request that Re- spondent allow him to change his membership status from "full" to "financial core" membership. Hart repeat- ed that Respondent did not recognize that type of mem- bership. Later the same day Viskovich crossed Respond- ent's picket line and, despite Respondent's strike, re- turned to work for the Employer. Shortly thereafter, as described in detail supra, Respondent filed intraunion charges against, and imposed fines upon, Viskovich for engaging in this conduct. The amended complaint alleges that Respondent violated Section 8(b)(1)(A) of the Act by bringing the intraunion charges against, and imposing a fine upon, Viskovich for having crossed and worked CARPENTERS SEATTLE COUNCIL (GORDON CONSTRUCTION) behind Respondent's picket line, "notwithstanding the fact that [prior to crossing and working behind the picket line] said employee tendered a resignation from Respondent." For the reasons set forth hereinafter, I am persuaded that the complaint should be dismissed. A union may lawfully discipline its full members for crossing a lawful picket line or for returning to work during a strike. A union rule proscribing such conduct is "a legitimate internal regulation of the conduct of its members, and imposition of a fine on a member is lawful under § 8(b)(1)(A) of the Act." NLRB v. Machinists Local 1327, 608 F.2d 1219, 1221 (9th Cir. 1979), citing NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 195 (1967). It is similarly axiomatic that a union attempt to impose court-collectible fines on former members for postresignation activity is unlawful. The Supreme Court has made clear a union's power over a member ends when he lawfully resigns. At that point, the union has no more control over the former member than it has over "the man in the street." NLRB v. Textile Workers Local 1029, Granite'State Joint Board, 409 U.S. 213, 217 (1972). See also Machinists Local 405 v. NLRB, 412 U.S. 84, 88- 90 (1973). Also recently in Machinists Local 1414 (Neu- feld Porsche Audi), 270 NLRB 1330 (1984), the Board held that any restrictions on a union member's right to resign are illegal. Thus, a union member has a statutory right to resign from the union at any time. In the instant case, when Viskovich crossed Respond- ent's picket line on October 14, 1983, and went to work, he had not tendered his resignation from Respondent. Quite the opposite, - when Respondent's representative Hart suggested that he resign, Viskovich stated, "I am not going to resign." Thus, this is not a situation where an employee-member disciplined by a union for crossing its picket line has tendered his resignation prior to cross- ing the picket line. Nor is it a situation where Respond- ent refused to permit him to resign.6 Under the circum- stances, when Viskovich crossed the picket line on Octo- ber 14, 1983, and returned to work, he was still a member of Respondent amenable to its disciplinary action. In concluding that when Viskovich crossed the picket line on October 14, 1983, he was still a "full" member of Respondent, amenable to its disciplinary action, I consid- ered the General Counsel's and the Charging Party's contention that the reasoning contained in the Hershey Foods and General Motors decisions7 warrants the con- clusion that Respondent's refusal to permit Viskovich to change his membership status from "full" to "financial core" membership violated his Section 7 rights and was therefore illegal. For the reasons set forth hereinafter, I reject this contention. s There is insufficient evidence that if Viskovich had submitted his res- ignation to Respondent prior to crossing its picket line, Respondent would have placed illegal restrictions upon his statutory right to resign. I recognize that Respondent's constitution contains certain limitations upon its members' right to resign. However, absent a cleat and unequivocal resignation request by Viskovich, I will not presume what would have happened if such a request had been made ' Hershey Foods Corp, 207 NLRB 897 (1973), enfd 513 F 2d 1083 (9th Cir 1975), NLRB v General Motors Corp, 373 U.S. 734 (1963) 535 In Union Starch, the Board considered the lawfulness of union procured discharges of employees who tendered dues and fees to become union members but declined to accept other obligations imposed by the union as a con- dition of membership. In holding that the employer vio- lated Section 8(a)(3) of the Act in discharging the em- ployees and that the union violated Section 8(b)(1) and (1)(A) of the Act by its efforts to procure the discharges, the Board found it necessary to construe the second pro- viso (proviso B) to Section 8(a)(3) of the Act in order to determine what may be required of employees in the way of "membership" under a union-security clause inso- far as that clause may be used to affect employment status." After considering both the language of the provi- so and its legislative history, the Board concluded (id. at 784-785: We therefore read proviso (B) as extending pro- tection to any employee who tenders periodic dues and initiation fees without being accorded member- ship. If the union imposes any other qualifications and conditions for membership with which he is un- willing to comply, such an employee may not be entitled to membership, but he is entitled to keep his job. Throughout the amendment to the Act, Con- gress evinced a strong concern for protecting the individual employee in a right to refrain from union activity and to keep his job even in a union shop. Congress carefully limited the sphere of permissible union security, and even in that limited the sphere of permissible union security, and even in that limit- ed sphere accorded the union no power to effect the discharge of nonmembers except to protect itself against "free rides." In enforcing the Board's order in Union Starch, the court found the Board's construction of the statute " reasona- ble" and "in harmony with the purpose of Congress to prevent utilization of union security agreements except to compel payment of dues and initiation fees." 186 F.2d at 1012. In General Motors, the Supreme Court case relied on in Hershey Foods, a unanimous Court (Justice Goldberg not participating) considered the lawfulness of an "agency shop" agreement under Section 8(a)(3) of the Act. In an- 8 Sec. 8(a)(3) of the Act, in pertinent part, makes it an unfair labor practice for an employer. . by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization , Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of ac- quiring or retaining membership Sec. 8(b)(2) of the Act reflects the limitations of the foregoing proviso by making it an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD swering that question, the Court examined the purpose of the 8(a)(3) union-security proviso and considered precise- ly what types of agreements it was intended to permit. Elaborating upon earlier statements in Radio Officers v. NLRB, 347 U.S. 17 (1954),9 the Court explained (373 U.S. at 742, 743-744): It is permissible to condition employment upon membership, but membership, insofar as it has sig- nificance to employment rights, may in turn be con- ditioned only upon payment of fees and dues. "Membership" as a condition of employment is whittled down to its financial core. If an employee in a union shop unit refuses to re- spect any union-imposed obligations other than the duty to pay dues and fees, and membership in the union is therefore denied or terminated, the condi- tion of "membership" for § 8(a)(3) purposes is nev- ertheless satisfied and the employee may not be dis- charged for nonmembership even though he is not a formal member. Of course, if the union chooses to extend membership even though the employee will meet only the minimum financial burden, and re- fuses to support or "join" the union in any other af- firmative way, the employee may have to become a "member" under a union shop contract, in the sense that the union may be able to place him on its rolls. In one of the footnotes to the foregoing discussion (373 U.S. at 743 fn. 10), the Supreme Court cited a number of authorities, beginning with the Union Starch case for its proposition that the union-shop "membership" obligation is satisfied, for purposes of the 8(a)(3) proviso, by a tender of dues and fees. In Radio Officers, the Supreme Court stated (347 U.S at 41). This legislative history clearly indicates that Congress intended to prevent utilization of union security agreements for any purposes other than to compel payment of union dues and fees. Thus Con- gress recognized the validity of unions' concern about "free riders," i.e., employees who receive the benefits of union representation but are unwilling to contribute their share of financial support to such union, and gave unions the power to contract to meet that problem while withholding from unions the power to cause the discharge of employees for any other reason And, pursuant to the proviso to Section 8(b)(1)(A), the Board and the courts have distinguished be- tween internal and external enforcement of union rules. The Su- preme Court has noted that "Congress did not propose any limita- tions with respect to the internal affairs of unions, aside from barring enforcement of a union's internal regulations to affect a member's employment status." NLRB v. Allis-Chalmers Mfg. Co., 388 U S. 175, 195 (1967) See also Scofield v NLRB, 394 U.S. 423 (1969). Thus, unions may pass and operate under a myriad of rules governing in- ternal affairs as long as those rules encompass a legitimate union in- terest, impair no policy embedded in the labor laws, and are resona- bly enforced against members who can leave the union and thus escape the effect of the rule Scofield v. NLRB, supra See also Ma- chinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984). Lastly, it is settled that "§ 8(b)(1)(A) and its proviso envision a bal- ancing of the rights of the union against the rights of employees and members on a case by case basis " NLRB v Molders Local 125, 442 F.2d 92, 94 (7th Cir 1971). See also NLRB Y. Granite State Joint Board, 409 U S. 213, 217 (1972); Machinists Local 405 v. NLRB, 412 U S 84, 88-89 (1973) These principles when applied to the pertinent facts, persuade me that Respondent's refusal to permit Viskovich to change his membership status from "full" to "financial core" mem- bership did not violate the Act. Briefly stated, as described in detail supra, Hershey Foods and General Motors, where the term "financial core" membership was used, merely involved a further application of the Board's Union Starch line of cases, which stand for the general proposition that, while con- tracts requiring membership as a condition of employ- ment are lawful within the meaning of the proviso to Section 8(a)(3), a union cannot compel, or an employer lawfully acquiesce in, the discharge of an employee except for his failure to pay required dues and fees. The question raised in the instant case-whether a union's re- fusal to permit its members to change their membership status from "full" to "financial core" membership by itself violates the Act, even absent an attempt by the Union to affect the employee's employment-was not de- cided in Hershey Foods or General Motors. Nor, in my view, is either of these cases helpful in deciding this issue. Rather I am persuaded that the legal principles ap- plicable to resolving this issue are as follows. Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a labor organization or its agents "to restrain or coerce . . . employees in the exercise of the rights guaranteed in Section 7: Provided, That this paragraph shall not impair the right of a labor organization to pre- scribed its own rules with respect to the acquisition or retention of membership therein." As the Supreme Court has stated: § 8(b)(1)(A) is a grant of power to the Board limit- ed to authority to proceed against union tactics in- volving violence, intimidation, and reprisal or threats thereof-conduct involving more than gen- eral pressures upon persons employed by the affect- ed employers implicit in economic strikes. The constitution of Respondent's International Union which establishes Respondent's membership requirements does not provide for "financial core" membership. It provides only for "full" membership status. Clearly, Re- spondent has a legitimate interest in prescribing its own rules with respect to membership and in limiting mem- bership to those employees who are willing to become "full" members. The legitimacy of Respondent's interest in this respect has been acknowledged by the proviso to Section 8(b)(1)(A), which gives a labor organization "the right . . . to prescribed its own rules with respect to the acquisition or retention of membership therein." Respondent's refusal to allow Viskovich to change his membership status from "full" to "financial core" mem- bership did not interfere with Viskovich's Section 7 rights or otherwise impair a policy embedded in the labor laws. Respondent did not interfere with Visko- vich's statutory right "to leave the union" so that he could be in a position to refrain from union activity without fear of union discipline. Quite the opposite, Re- spondent's representative Hart, as described in detail supra, suggested that Viskovich resign from the Union. Viskovich, however, rejected the suggestion and insisted that he be allowed to remain in Respondent as a "finan- cial core" member because, as Viskovich testified, he is a carpenter by trade and wants to remain a member of the Carpenters Union. In other words, Viskovich did not CARPENTERS SEATTLE COUNCIL (GORDON CONSTRUCTION) want to sacrifice all of the benefits of union membership that his resignation would entail, but wanted to place himself in a position where he would be able to avoid union , discipline while at the same time retaining the ben- efits of membership. In balancing the above-described conflicting interests of Viskovich and Respondent-Viskovich's interest in re- maining in Respondent as a "financial core" member and Respondent's interest in enforcing its constitutional rules governing membership-I am persuaded that Respond- ent's refusal to permit Viskovich to change his member- ship status from a "full" to a "financial core" member was a reasonable restriction which did not violate the Act. I have reached this conclusion because Respond- ent's interest was a legitimate one which did not interfere with Viskovich's Section 7 right to leave the Respond- ent. It is for this reason that I find that Respondent's re- 537 fusal on October 14, 1981, to allow Viskovich to change his membership status from "full" to "financial core" membership did not violate the Act. Based upon the foreging, I find that when Viskovich crossed Respondent's picket line on October 14, 1983, and returned to work he was still a union member ame- nable to disciplinary action and, further, find that Re- spondent's refusal to permit him to change his member- ship status from "full" to "financial core" membership did not violate the Act . 10 It is for these reasons that I recommend the dismissal of the amended complaint herein. [Recommended Order for dismissal omitted from pub- lication.] to In view of these conclusions, I have not considered Respondent's other defenses.