Meat Cutters Union Local 81 United Food And Commercial Workers International Union, Afl-Cio-Clc (Macdonald Meat Co., Et Al.)

1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Meat Cutters Union Local 81 United Food and Com- mercial Workers International Union, AFL- CIO-CLC (MacDonald Meat Co., et al.) and Michael E. Heier and Judith H. Perkins and David Horn. Cases 19-CB-3900, 19-CB-3902, and 19-CB-3962 17 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN, BABSON, STEPHENS, AND CRACRAFT On 12 November 1981 Administrative Law Judge Joan Wieder issued the attached decision. The Respondent, the General Counse1, 1 and the Charging Parties filed exceptions and supporting briefs. 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, fmdings, and conclusions only to the extent consistent with this Decision and Order. The instant case involves, inter alia, the Re- spondent's imposition of fines and suspensions on employees who returned to work during a strike against their employers. Subsequent to the judge's decision, the Board issued its decision in Machinists Local Lodge 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), and the Supreme Court issued its decision in Pattern Makers v. NLRB, 473 U.S. 95 (1985), which holds that a union may not lawfully restrict the right of its employee-members to resign and that a union violates Section 8(b)(1)(A) by im- posing fmes on employees who resign their union memberships and return to work during a strike. Based on those decisions, we adopt the judge's findings that: (1) the provision in the Respondent's bylaws which prohibits resignations when a strike is imminent or in progress is invalid; 2 (2) the Re- spondent violated Section 8(b)(1)(A) by telling MacDonald Meat Co. employees that resignation was futile and that discipline would be imposed on employees who resigned and returned to work during the strike; (3) the Respondent violated Sec- tion 8(b)(1)(A) by fining employees of E & E 1 The General Counsel subsequently filed a request to withdraw its ex- ceptions. That request is granted. 2 In accord with our decision in Auto Workers Local 73 (McDonnell Douglas), 282 NLRB 466 (1986), we shall order the Respondent to remove from its bylaws and other governing documents the unlawful re- striction on resignations. Meats, Inc.3 and King's Command Meats, Inc.4 who resigned and returned to work during the strike; and (4) the Respondent did not violate the Act by fining and suspending MacDonald Meat Co. employees Tommy Favre, Judith Perkins, and Bob Kiyohara who returned to work during the strike without first resigning their union member- ships. See also NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967). Contrary to the judge, howev- er, we conclude that the Respondent did not vio- late the Act by suspending from membership em- ployees who resigned their union memberships and returned to work during a strike.5 Since the Board's decision in Neufeld and its progeny, the Board has not addressed the issue of whether a union can lawfully expel or suspend an employee member who resigns and returns to work during a strike. 6 Before Neufeld, the Board had held that a union violates Section 8(b)(1)(A) by sus- pending employees who resign and return to work during a strike7 but does not violate the Act by ex- pelling them. 5 For the reasons set forth in former 3 The following employees of E & E Meats were unlawfully fined: Edith Banchero; Kathleen Derda; Charles Mitchell; Jay Ness; Ina May Chmela, Michael Heier; and Fred Orahood. 4 The following employees of King's Command Meats, Inc. were un- lawfully fined: David Horn; Donald Baer, Ann Miccolupi; and Irene Taylor. 5 The stipulation of facts also stated that the Respondent suspended certain employees of E & E Meats, Inc. and MacDonald Meat Co. for "failure to pay dues " It is possible that these are dues attributable to the period following these employees' resignations, but the record does not make that clear. Hence, contrary to our dissenting colleagues, we do not find that the General Counsel has carried the burden of demonstrating that the Respondent suspended employees for the nonpayment of dues that it asserted had accrued after their resignations. Hence, we need not decide whether a suspension for such a reason would be lawful. Further, we do not agree that we are applying a beyond-a-reasonable- doubt standard, but rather we apply a straightforward preponderance-of- the-evidence standard, under which the party with the burden of proving a particular fact—here, that the dues in question had purportedly accrued after the employees' resignations—must present a sufficient factual basis from which the material fact in question may be reasonably inferred, even if the inference stands on as little as a 51-percent probability. The suspension for nonpayment of dues here could just as well have been for dues liability that accrued prior to the resignations, but that were not acted on by the Respondent until after the resignations. Given this ambi- guity, the General Counsel should have obtained clarifying evidence. Filling the void, as our dissenting colleagues do, with the assumption that the General Counsel would not prosecute the case unless the facts in issue constitute a violation of the Act, is a proposition that we are wholly unprepared to accept. 6 it is clear that a union can expel or suspend a member who works during a strike NLRB v. Allis-Chalmers Mfg. Co., supra 7 Machinists District 99 (General Electric), 194 NLRB 938 (1972), enf. denied m pertinent part 489 F.2d 769 (1st Cir. 1974). Pattern Makers' Assn. of Los Angeles & Vicinity (Lietzau Pattern), 199 NLRB 96 (1972) The practice of maintaining a distinction between sus- pensions (held unlawful) and expulsions (held lawful) has never com- manded a Board majority. Rather, the dichotomy resulted from former Member Fanning's concurring opinion in Lietzau. Thus, in General Elec- tric, a majority, with former Chairman Miller dissentmg, held that a umon violated Sec 8(b)(1)(A) by suspending employees who resigned and returned to work during a strike In Lietzau, former Chairman Miller and former Member Kennedy ruled, for the reasons set forth in the Gen- eral Electric dissent, that a union can lawfully expel employees who Continued 284 NLRB No. 131 FOOD & COMMERCIAL WORKERS LOCAL 81 (MACDONALD MEAT CO.) 1085 Chairman Miller's dissent in Machinists District 99 (General Electric), 194 NLRB 938 (1972), and those set forth below, we hold that a union does not vio- late the Act by expelling or suspending from mem- bership employees who resign their union member- ships and return to work during a strike. In thus distinguishing between fines, on the one hand, and suspension or expulsion from member- ship, on the other, we are respecting an essential balance of interests that Congress has embodied in the 8(b)(1)(A) prohibition and the 8(b)(1)(A) provi- so.9 That balance is fundamentally one struck be- tween the interest of a group in its cohesiveness and continuing viability and the interest of individ- uals in remaining free of the group's control if they so choose. Thus, Congress wanted to assure em- ployees of the right to choose between engaging in union activity or refraining from such activity, and it especially wanted to insulate employees' job rights from being affected by those choices except insofar as employees might be required to pay the equivalent of dues under a union-security clause. But Congress also recognized that unions had le- gitimate interests in deciding how to regulate their internal affairs so as to forestall erosion of their status. 1° Setting the terms on which individuals could become and remain members was a signifi- cant aspect of this—expressly referred to in the "acquisition or retention of membership" language of the proviso; and, as the Supreme Court recently observed in its decision upholding the Board's rule that unions may not fme employees for resigning, it has been generally assumed that "rules with re- spect to the . . . retention of membership' are those that provide for the expulsion of employees from the union." Pattern Makers v. NLRB, supra, 473 U.S. at 109 (footnote omitted). In fact, the legislative history of the proviso at first blush suggests that Congress intended to give unions a completely free hand regarding expulsions of members. Thus, in a colloquy between Senator Ball and Senator Pepper concerning the intended scope of Section 8(b)(1)(A), the following under- standings were put on record: M. PEPPER. Am I correct in assuming that it is the interpretation of the Senator from Ohio [Senator Taft] and the Senator from Min- resign and return to work during a strike. They were joined on the expul- sion issue by former Member Fanning who also, however, continued to adhere to the General Electric majority position. Former Member Pendia dissented in Lietzau arguing that both suspensions and expulsions were unlawful. Accordingly, with the exception of former Member Fanning's concurrence in Lietzau, no previous Board decision has recognized a dis- tinction between suspension and expulsion m the instant context. 9 The proviso states in pertinent part that a union has authority "to prescribe its own rules with respect to the acquisition or retention of membership therein." 10 NLRB v. illlis-Chalmers Mfg. 2o, supra, 388 U.S. at 181. nesota [Senator Ball] that there is no provision of the bill which denies a labor union the right to prescribe the qualifications of its members, and that if the union wishes to discriminate in respect to membership, there is no provision in the bill which denies it the privilege of doing so? MR. BALL. Absolutely not. If the union expels a member of the union for any reason other than nonpayment of dues, and there is a union-shop contract, the union cannot under the contract require the employer to discharge the man from his job. It can expel him from the union at any time it wishes to do so, and for any reason. 93 Cong.Rec. 4400-4401 (1947) (emphasis added). In NLRB v. Shipbuilders, 391 U.S. 418 (1968), however, the Supreme Court agreed with the Board that Congress did not intend so absolute an immunity for union expulsions. Some policies of the labor laws are of such significance that they may not be overridden even by the union's con- gressionally recognized interest in determining who may and who may not be its members; and in that case the Court recognized that maintaining unim- peded access to the processes of the Board was the kind of public interest that is "overriding." Id. at 424-425. By the very use of the term "overriding," the Court implicitly applied a balancing test. In that case, the public policy of Board access was in conflict with the union's interest in being able to expel members at will, and the former interest simply outweighed the latter. 391 U.S. at 424-425. We do not, however, see the balance as tipping against a union's freedom to expel or suspend mem- bers following their resignations. 11 To be sure, as Pattern Makers makes clear, there is a strong policy embodied in the labor laws of allowing members to resign, and unions may not frustrate that right by seeking to impose fines on those who exercise it. Extracting money from an individual is a highly coercive measure and it does not directly implicate a union's freedom to admit and expel whom it wishes; the policy of protecting the exercise of the Section 7 right to "refrain" from engaging in union activity properly outweighs a union's interest in imposing the fine. Expelling or suspending some- 11 As a practical matter, imposing a "suspension" on a member who has resigned amounts to little more than placing a time limit on the period of expulsion, and where the time limit is left indefinite, any dis- tinction seems purely semantic. Hence, in a case such as this, there is no reason to treat suspensions any differently from expulsions. As noted in fn. 8 above, distinctions between suspensions and expulsions have never enjoyed majority support at the Board. However, we need not now pass on the validity of such a distinction except as it involves a union's re- sponse to resigning and working during a strike. 1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD one who has already signified that he does not wish to be a member of the organization from which he is being expelled or suspended is argu- ably less coercive and it is precisely the kind of action that, as indicated in the legislative history of the proviso, Congress wished to leave unions free to take with relative impunity." The balance we strike here is analogous to the one that the Board struck in Molders Local 125 (Blackhawk Tanning), 178 NLRB 208 (1969), when it declined to retreat from its earlier position that a union could lawfully expel a member who filed a decertification petition against the union," but held nonetheless that a union violated Section 8(b)(1)(A) of the Act when it imposed a fine for such conduct. As the Board explained (178 NLRB at 208): The answer to this question cannot be found in the routine application of a formula: if ex- pulsion is lawful so is a fine, or if expulsion is unlawful so is a fine. The solution calls for dis- crimination, the weighing of the public policy in each situation against the union's right to regulate its internal affairs. The Board used the terms "punitive" and "defen- sive" to characterize fmes and expulsions, respec- tively, but the reasoning underlying these terms was essentially (1) that the deterrent effect of ex- pulsion is minimal where the expelled individual has already publicly rejected the organization and (2) expulsion, unlike a fine, is intimately linked with the union's legitimate interest in regulating its inter- nal affairs so as to ward off the attack. By fining a member but allowing him to retain his membership, the Board explained, "the union is not one whit better able to defend itself against decertification," since the "dissident member could still campaign against the union while remaining . . . privy to [the union's] strategy and tactics." (178 NLRB at 209.) The Board thus implicitly found that a union's interest in expelling those who oppose the 12 This does not mean, of course, that if union discipline is labeled "ex- pulsion" or "suspension" but has monetary implications it is not coercive. Thus a union may not, for example, subsequently impose, as a penalty for the exercise of Sec. 7 rights, increased initiation fees on employees. See, e.g., Professional Engineers Local 151 (General Dynamics), 272 NLRB 1051 (1984) (union violated Sec. 8(b)(1)(A) by imposmg addibonal initi- ation fees on employees who, after resigning their union membership and returning to work, continued to meet their core financial obligation). It is also arguable that a suspension for nonpayment of postresignation dues would be unlawfully coercive insofar as it would expressly threaten im- position of financial liability on a theory that the "meter" was still run- ning during the postresignation period. Moreover, demanding the pay- ment of such dues would go beyond a union's interest in excluding from its membership those who have indicated they do not want to be mem- bers or to participate in the strikes that fellow members have authorized. As we have noted above, however, we do not find that the issue of a suspension for postresignation dues is presented on this record. 13 Tawas Tube Products, 151 NLRB 46 (1965). union's very existence as a collective-bargaining representative is not outweighed by the minimal impact on the decertification process. Finally, we note that the right of suspension or expulsion that concerns us here is the logical corol- lary of the member's right to resign recognized in Pattern Makers and Neufeld. Principles of volun- tary unionism invoked in those cases logically apply to all parties to an association; accordingly, just as, in vindication of Section 7 rights, we have protected resigning employees from compelled as- sociation with other union members so, in vindica- tion of the interests protected by the proviso, we should protect the union members who choose to stay from compelled association with those who choose to leave. As a practical matter, this means simply that the union is free to announce that it is removing the resigning employee from eligibility for membership for either a certain period (time- specified suspension) or indefmitely (expulsion or indefinite suspension). In our view, this effectuates an important policy of the proviso and does no evi- dent harm to any other policy of the labor laws. We have not overlooked our dissenting col- leagues' contention that our decision here improp- erly contravenes the principle that employees should be free to leave the union and "escape" its rules." Insofar as that principle is embodied in Section 8(b)(1)(A) of the Act, however, only ac- tions by a union that constitute restraint or coer- cion are prohibited. As we have explained, at least absent some threat of monetary penalty, suspending or expelling those who have signified their intent not to belong to the union, in our view, does not tend to coerce or restrain them. Furthermore, for the reasons we have stated above, we believe that our dissenting colleagues' position insufficiently ac- commodates interests protected by the 8(b)(1)(A) proviso. We are satisfied that the balance we have struck adequately takes into account both Con- 14 At least one commentator has expressed similar views, suggesting that permitting expulsions of resigned members would run afoul of the Supreme Court's admonition in NLRB v. Textile Workers Local 1029, Granite State Joint Board, 409 U.S. 213, 217 (1972), that a union "has no more control over [its] former member[s] than it has over the man in the street." Wellington, Union Fines and Workers Rights, 85 Yale L.J. 1022, 1039 fn. 99 (1976). However, as the court of appeals noted in NLRB v. Machinists District 99, 489 F.2d 769, 771 (1st Cir. 1974), the 8(b)(1)(A) proviso "extends union control even over 'the man in the street' to the extent that it preserves the union's right to prescribe rules for acquiring membership" (citations omitted). As noted above, announcing an expul- sion is simply another way of announcing that resigning individuals are not deemed eligible for membership. As Chairman Miller observed in his dissent in Machinists District 99 (General Electric), 194 NLRB 938, 939 (1972), even as to resigned members, a union should retain "the power to make its benefits unavailable to individuals who have acted contrary to the union's best interest." Finally, to the extent that the conduct for which discipline is imposed is the act of resigning, it cannot be said that the discipline is aimed at the conduct of a "man in the street"—rather it is aimed at the process of acquiring that status. FOOD & COMMERCIAL WORKERS LOCAL 81 (MACDONALD MEAT CO.) 1087 gress' intent to protect employees from being co- erced and restrained from exercising their Section 7 right to refrain from union activity and Congress' intent to leave unions free to decide who should or should not be deemed eligible for current union memberships. In summary, it is our view that the application of the proviso to Section 8(b)(1)(A) and the related policy considerations set forth above require the conclusion that a union may lawfully expel or sus- pend employees who resign their union member- ship and return to work during a strike. To the extent that the Board's decision in Machinists Dis- trict 99 (General Electric), 194 NLRB 938 (1972), is inconsistent with this decision, it is overruled. ORDER The National Labor Relations Board orders that the Respondent, Meat Cutters Union Local 81 United Food and Commercial Workers Internation- al Union, AFL-CIO-CLC, Seattle, Washington, its officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining or giving effect to the following provision in its bylaws or other governing docu- ments: In addition, it is declared to be the policy of this Local Union that consistent with Article XVI and XVII, of the Constitution of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, that no employee seeking to resign, requesting a Retiring Card or requesting a Transfer Card shall be entitled to receive such a card and his resignation shall [be] of no force and effect during any period in which economic actions against the employee's current employer is im- minent or in progress. This policy is declared in consideration of the fact that each member obligated himself/herself upon becoming a member to never knowingly wrong a fellow member and further in consideration of the fact that in the event of a strike and/or lock- out all members are relying upon all of the other members for mutual aid and protection in accordance with Section 7 of the National Labor Relations Act and the fellow members oath of obligation upon becoming a member of this International Union. (b) Restraining and coercing employees by tell- ing them it would be futile to resign their union memberships or otherwise threatening such em- ployees with discipline if they were to resign their union memberships. (c) Restraining and coercing employees by im- posing fines on them for resigning their union memberships and returning to work during the 1980 strikes against E & E Meats, Inc. and King's Command Meats, Inc. (d) 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) Remove from its bylaws and other governing documents the provision set forth above in para- graph 1(a). (b) Rescind the fmes levied against Edith Ban- chero; Kathleen Derda, Charles Mitchell, Jay Ness, Ina May Chmela, Michael Heier, Fred Orahood, David Horn, Donald Baer, Ann Miccolupi, and Irene Taylor, and refund to them any moneys they may have paid as a result of such fines, plus inter- est. (c) Remove from their records any references to the fines imposed against the above-named employ- ees and inform them, in writing, that such action has been taken. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its business office and meeting halls copies of the attached notice marked "Appen- dix." 15 Copies of the notice, on forms provided by the Regional Director for Region 19, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees and members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Sign and return to the Regional Director suf- ficient copies of the notice for posting by MacDon- ald Meat Co., E & E Meats, Inc., and King's Com- mand Meats Inc., if willing, at all places where no- tices to employees are customarily posted. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 15 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." 1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CHAIRMAN DOTSON and MEMBER CRACRAFT, dis- senting in part. We cannot join the majority in finding that the Respondent did not violate Section 8(b)(1)(A) by suspending employees for failing to pay union dues after they resigned union membership, and by sus- pending employees for crossing the Respondent's picket lines and returning to work after they re- signed. We find that the Respondent failed in its obligation to accept the employees' resignations and unlawfully restrained and coerced employees in the exercise of their statutory right to resign. The Respondent also necessarily restrained and co- erced employees in the exercise of their right to re- frain from participating in the Respondent's strikes by suspending them for doing so. In finding the suspensions lawful, despite the fact the employees resigned before crossing the Respondent's picket lines, our colleagues have vitiated the factor tradi- tionally found "critical" to permitting unions to discipline members for violating internal rules: the members' freedom to "leave the union and escape the rule." This case concerns the Respondent's reaction to those of its employee-members who crossed its picket lines and returned to work. Most resigned before doing so. This case was presented to the judge on a stipulated record. In March 1977 the Respondent adopted a resolu- tion amending its bylaws that stated, inter alia, that "any member failing to respect any picket line" it established would be subject to a fme from $250 to $500. The amendment also stated that an employ- ee's effort to resign" shall [be] of no force and effect during any period in which economic actions against the employee's current employer is immi- nent or in progress." In September 1980 the Respondent struck three employers: E & E Meats, Inc., King's Command Meats, Inc., and MacDonald Meat Co. About the day the strike against their Employers began, 12 E & E Meats employees' and 4 King's Command Meats employees, 2 all of whom had been union members, tendered resignations from union mem- bership and later returned to work during the strike. Six MacDonald Meat employees s also worked during the strike. They did not, however, tender resignations. Of the six, three were union Edith Banchero, Patrick Brown, Roger Peterson, Jay Ness, Michael Heier, Gary Orahood, Kenneth Banchero, Leslie Banchero, Ina May Chmela, Kathleen Derda, Charles Mitchell, and Fred Orahood. 2 David Horn, Donald Baer, Ann Miccolupi, and Irene Taylor. a Tommy Favre, Judith Perkins, Bob Kiyohara, Terry Perkins, Gene Gray, and Vernon Olson. members.4 The other three had paid initiation fees but had not yet been initiated.5 The Respondent "cited" the E & E Meats and MacDonald Meat employees to appear at a union executive board meeting "to explain going to work through a primary picket line." The Respondent "charged" the King's Command Meats employees with violating the Respondent's constitution by crossing and working behind a picket line the Re- spondent had established. According to the stipula- tion, the Respondent tried all of the employees and took the following actions: —It fined and suspended seven E & E Meats employees6 because they crossed the Respondent's picket line and returned to work; —It suspended five more E & E Meats em- ployees7 for failing to pay union dues;8 —It fined and suspended all four King's Command Meats employees2 for crossing the Respondent's picket line and returning to work; —It fined and suspended two of the Mac- Donald Meat employees who were initiated members" for crossing the Respondent's picket line and returning to work; —It suspended one MacDonald Meat em- ployee who was an initiated member" for fail- ing to pay dues; —It suspended two MacDonald Meat em- ployees who had not been initiated to union membership" for failing to pay dues; and —It took no action against one uninitiated MacDonald Meat employee." 4 Tommy Favre, Judith Perkins, and Bob Kiyohara. 5 Terry Perkins, Gene Gray, and Vernon Olson. In its exceptions, the Respondent contends that the judge erred in find- ing that these employees were not union members. The Respondent stipu- lated, however, "At all times material herein, the [MacDonald Meat em- ployees involved in this case] were members of Respondent, except Vernon Olson, Terry Perkins and Gene Gray who had tendered their ini- tiation fees but had not been initiated." 6 Edith Banchero, Jay Nees, Michael Heier, Ina May Chmela, Kath- leen Derda, Charles Mitchell, and Fred Orahood. ' Patrick Brown, Roger Peterson, Gary Orahood, Kenneth Banchero, and Leslie Banchero. 8 In Conclusion of Law 3 the judge found that the employees were "disciplin[ed] by suspension from membership for failure to pay dues. . . for post-resignation activities dunng the strike[s]." The parties stipulated, however, that the suspensions were for failing to pay dues. They did not further stipulate that this sanction was simply a ruse to hide the fact that the Respondent was actually sanctioning them for crossing its picket lines and returning to work after they resigned. Because there is no evidence to support the judge's inference, we reject it. Accordingly, we adopt the parties' stipulation that the suspensions imposed for failing to pay dues were in fact imposed for that reason. 9 David Horn, Donald Baer, Ann Miccoltim, and Irene Taylor. 1 ° Tommy Favre and Bob Kiyohara. 11 Judith Perkins. 12 Terry Perkins and Gene Gray. 15 Vernon Olson. FOOD & COMMERCIAL WORKERS LOCAL 81 (MACDONALD MEAT CO.) 1089 We agree with our colleagues that the Respond- ent's bylaw provision purporting to restrict resigna- tions was invalid and unenforceable and that the Respondent violated Section 8(b)(1)(A) by fining those employees who had resigned union member- ship for crossing the Respondent's picket lines and returning to work. We part with our colleagues, however, on the question of whether the Respond- ent also violated Section 8(b)(1)(A) by suspending employees for the same conduct and for failing to pay dues." We find that it did. A. The principles necessary to decide this case are already well established. Thus, in NLRB v. Allis- Chalmers Mfg. Co., 13 the Supreme Court held that a union does not violate Section 8(b)(1)(A) by fining employees who remain union members for crossing the union's picket line and returning to work. The Court found that the fines do not amount to "restrain[t] or coerc[ionj" within the meaning of Section 8(b)(1)(A) because Congress never intended that the Board intrude on internal union affairs through Section 8(b)(1)(A)." Because the employees in Allis-Chalmers did not resign their union membership prior to crossing the picket line, the Court found it unnecessary to consider whether the proviso to Section 8(b)(1)(A)—which permits union rules "with respect to the acquisition or re- tention of membership therein"—privileged the union's fines." The Court expanded on Allis-Chalmers in Sco- field v. NLRB," in which the Court found that a union had not violated Section 8(b)(1)(A) by set- ting a ceiling, enforced with fines, on the daily wages members working on an incentive basis could earn. The Court set forth a basic test for de- termining whether union rules are valid: [Section] 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legiti- mate union interest, impairs no policy Con- gress has imbedded in the labor laws, and is reasonably enforced against union members 14 Our colleagues have adopted the judge's unsupported conclusion that the Respondent's suspensions for failing to pay dues were actually imposed because the employees crossed the Respondent's picket lines. See supra, fn. 8. 15 388 U.S. 175 (1967). 16 Id. at 179-184. Sec. 8(bX1)(A) states: (b) It shall be an unfair labor practice for a labor organization or its agents— (1) to restrain or coerce (A) 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 prescribe its own rules with respect to the acquisition or retention of membership therein . . . 12 Id. at 192 fn. 29. 12 394 U.S. 423 (1969). who are free to leave the union and escape the rule. 9 The fact that members could resign from the union and escape the wage ceiling was "critical" to the rule's validity in Scofield.2° Two later cases are consistent with the Scofield principle that union members must be "free to leave the union and escape" union rules. 21 In each the Court held that a union may not fine former members who cross the union's picket line and return to work after resigning union membership. The Court emphasi7.ed: "[W]hen there is a lawful dissolution of a union-member relation, the union has no more control over the former member than it has over the man in the street."22 Finally, the Court in Pattern Makers v. NLRB23 held in 1985 that a union may not restrict an em- ployee's opportunity to resign from the union, nor fine an employee for exercising that opportunity. Applying the Scofield test, the Court found that the restriction and the fine impairs a policy imbedded in the labor laws: the right to voluntary unionism implicit in Section 8(a)(3). 2 4 The Court also reject- ed the contention that such restrictions are privi- leged by the proviso to Section 8(b)(1)(A). The Court stated: "[T]he Court has assumed that 'rules with respect to the . . . retention of membership' are those that provide for the expulsion of employ- ees from the union."22 B. By applying these well-established principles, the result in this case becomes clear. The Respondent violated Section 8(b)(1)(A) by suspending employ- ees for failing to pay dues after they resigned. The employees enjoyed a statutory right to resign and the Union thus had a correlative obligation to accept their resignations and terminate their liabil- ity for dues. By suspending them for failing to pay dues, the Respondent necessarily restrained and co- erced them in the exercise of their right to resign. The Respondent cannot properly contend that its refusal to accept the employees' resignations is a valid internal rule because the rule fails the Scofield 1° Id. at 430. 2° Pattern Makers v. NLRB, 473 U.S. 95 (1985). 21 Machinists Local 405, 412 U.S. 84 (1973); NLRB Y. Textile Workers Local 1029, Granite State Joint Board, 409 U.S. 213 (1972). 22 NLRB a Textile Workers Local 1029, supra, 409 U S. at 217. See also Machinists Local 405 v. NLRB, 459 F.2d 1143 (D.C. Or. 1972), revd. on other grounds sub nom. NLRB v. Boeing Co., 412 U.S. 67 (1973): It is . . . obvious that membership in the labor organization is the sine qua non to the authority of a union to impose disciplinary bur- dens upon the employees it represents. [459 F.2d at 1151.] 23 Supra, 473 U.S. 95. " Id. at 108-109. 25 Id. at 109. 1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD test. As in Pattern Makers, the rule impairs a policy Congress imbedded in the labor laws: the right to voluntary unionism implicit in Section 8(a)(3). The Respondent also violated Section 8(b)(1)(A) by suspending those of its former members who crossed its picket lines and returned to work after resigning union membership. The Respondent re- strained and coerced these employees in the exer- cise of their right to refrain from participating in the Respondent's strikes because it sanctioned them for doing so. The sanction cannot be justified as imposed pursuant to a valid internal rule because the Respondent imposed the rule for postresigna- tion conduct. Employees thus were not "free to leave the union and escape the rule." It also cannot otherwise be justified as privileged by the proviso. The proviso permits unions to fashion rules deny- ing applicants admission to the union or providing for members' expulsions. It does not permit a union to reach former members who have made no over- ture for readmission to the union and sanction them for their conduct after they resigned." C. To justify its conclusion that the Respondent did not violate Section 8(b)(1)(A) by suspending em- ployees, the majority has fashioned a balancing test. Relying on the Supreme Court's decision in NLRB v. Shipbuilders," the majority balances em- ployee rights against union sanctions and concludes that the balance does not tip against "a union's freedom to expel or suspend members following their resignations." They find, "Expelling or sus- pending someone who has already signified that he does not wish to be a member of the organization from which he is being expelled or suspended is ar- guably less coercive" than fines, which are unlaw- ful, and that the expulsion or suspension is privi- leged by the proviso to Section 8(b)(1)(A). The majority also suggests that a suspension is nothing more than an announcement that the suspended employee may not return to union membership for the suspension period and that "we should protect the union members who choose to stay from com- pelled association with those who choose to leave." In NLRB v. Shipbuilders, 28 the Supreme Court adopted the Board's conclusion that a union vio- lates Section 8(b)(1)(A) by preferring internal union charges against an employee-member for filing unfair labor practice charges with the Board. 26 The fact that the employees were suspended rather than expelled does not dictate the result we reach. Like the majority, we find no mean- ingful distinction between suspensions and expulsions in this context. Contrast Member Fanning's concurring opinion in Pattern Makers' Assn. of Los Angeles & Vicinity (Lietzau Pattern), 199 NLRB 96 (1972). 27 391 U.S. 418 (1968). 28 Supra, 391 U.S. 418. While acknowledging that Section 8(b)(1)(A) "as- sures a union freedom of self-regulation where its legitimate internal affairs are concerned," the Court found, "[W]here a union rule penalizes a member for filing an unfair labor practice charge with the Board, other considerations of public policy come into play."" The Court adopted Shipbuilders as that part of its Scofield test that requires that union rules "impair . . . no policy Congress has imbed- ded in the labor laws." 3° The Supreme Court later invoked that part of the Scofield analysis in striking down union fines for resigning union membership in Pattern Makers. 31 Accordingly, based on the manner in which they have framed the issue— whether the Respondent violated Section 8(b)(1)(A) by suspending employees "following their resignations"—our colleagues need only have decided whether the Respondent's suspensions are unlawfully coercive as were the fines imposed in Pattern Makers. The majority, however, has mischaracterized the reasons for which the Respondent imposed the sus- pensions. The parties stipulated that after the em- ployees resigned, the Respondent suspended certain of them "for failure to pay dues," while others were suspended for crossing the picket line and re- turning to work." The suspensions were not, as the majority suggests, for resigning. 29 Id. at 424. 3° See Scofield V. NLRB, supra, 394 U.S. at 429-430. 31 See Pattern Makers v. NLRB, supra, 473 U.S. 95, 108-109. 32 The majority attempts to find an ambiguity in the stipulation where none exists by stating that it is "possible" but "not . . . clear" that the employees were suspended for nonpayment of postresignation dues. On this basis, the majority concludes that "the General Counsel has [not] carried the burden of demonstrating that the Respondent suspended em- ployees for the nonpayment of dues that it asserted had accrued after their resignations." We disagree. The stipulation states that some 4 months after the employees resigned, "Respondent suspended the , . employees from membership for failure to pay dues." There is not so much as a hint in the record that the dues in question had accrued prior to the employees' resignations. In its excep- dons and brief, the Respondent does not contend that the employees were lawfully suspended for failure to pay dues that had accrued before their resignations. Rather, the Respondent contends that because its re- strictions on resignation are valid, the employees' resignations were inef- fective and the employees remained members properly subject to disci- pline The Respondent's contention is, of course, entirely consistent with a readmg of the stipulation as refemng to dues that had accrued after the employees resigned. Further, such a reading of the stipulation is the only logical one from the General Counsel's perspective. It is simply unreason- able to assume that the General Counsel would allege as a violation of the Act union discipline of employees for nonpayment of dues that had accrued while they were union members. Under these circumstances, we find the inference fully warranted that the dues referred to in the stipula- tion accrued after the employees resigned. In concluding otherwise, the majority apparently overlooks Sec. 10(c) of the Act, which states that a violation must be established by a "preponderance" of the evidence; the General Counsel need not prove a violation beyond all conceivable doubt Accordingly, for all of the above reasons, we reject our colleagues' construction of the stipulation. FOOD & COMMERCIAL WORKERS LOCAL 81 (MACDONALD MEAT CO.) 1091 Precedent supports the view that suspending em- ployees for conduct engaged in after resignation is an unfair labor practice. Under Board law, when a member tenders a resignation, a union violates Sec- tion 8(b)(1)(A) if it refuses "to acknowledge the ef- fectiveness" of the resignation." Here, there can be no doubt that the Respondent has refused to ac- knowledge the effectiveness of the employees' res- ignations. Instead of accepting and giving effect to the employees' resignations, the Respondent has disciplined them for subsequent conduct just as if they were still members. The Respondent's actions in suspending employees for postresignation con- duct cannot be reconciled with its duty to treat the resignations as severing the membership tie. Ac- cordingly, our colleagues err in failing to find the suspensions violative of the Act under this well-es- tablished principle. We also disagree with our colleagues' reliance on Chairman Miller's dissent in General Electric34 as authority for the result they reach today. In General Electric, Chairman Miller found that the union had not violated Section 8(b)(1)(A) by sus- pending for 5 years employees who had worked during the union's strike. The employees in that case had resigned from the union before returning to work. Conceding that "the total consequence of [the employees' suspensions] is not entirely clear," Chairman Miller, like the majority in this case, fashioned an interpretation of the employees' sus- pensions, fmding that the suspensions meant only that the employees could not again become mem- bers during the 5-year period. 35 Relying on the proviso to Section 8(b)(1)(A), he concluded: "[T]he union retains the power [despite the employees' resignations] to make its benefits unavailable to in- dividuals who have acted contrary to the union's best interest." 3 6 Chairman Miller's interpretation, like the major- ity's in this case, is extremely charitable. There ap- parently was no evidence in General Electric sup- porting Chairman Miller's conclusion that the sus- pensions meant only that the suspended employees could not return to union membership, and there is no such evidence in this case. Accordingly, we would instead give the suspensions their natural in- terpretation: they are sanctions imposed to disci- pline employees for violating union rules. 38 Distillery Workers Local 80 (Capitol-Husting), 235 NLRB 1264 (1978); Electrical Workers IBEW Local 66 (Houston Lighting), 262 NLRB 483 (1982). See also Typographical Union (Register Publishing), 270 NLRB 1386 (1984). 34 Machinists District 99 (General Electric), 194 NLRB 938 (1972), enf. denied in relevant part 489 F.2d 769 (1st Cir. 1974). 05 Id. at 939. 38 Id. In any event, permitting unions to sanction em- ployees for postresignation conduct—whatever the sanction—vitiates the "critical" factor37 that per- mits unions to discipline members for violating in- ternal rules: the members' freedom to "leave the union and escape the ruIe." 38 When employees are subject to sanction for postresignation conduct, they are not free to "leave the union and escape the rule" no matter how willingly the union ac- cepted and otherwise honored their resignations. As discussed above, the proviso to Section 8(b)(1)(A) also cannot privilege sanctions for postresignation conduct. Rules with respect to the acquisition or retention of membership are rules that deny applicants admission to the union or pro- vide for members' expulsions." The proviso cannot justify reaching former members who have made no overture for readmission to the union and sanctioning those employees for their conduct after they resigned. Once resigned, the union has no more control over thoge employees "than it has over the man in the street."4° D. In sum, we conclude that Section 8(b)(1)(A) re- quires that unions accept employee resignations and refrain from sanctioning former members for postresignation conduct." The fundamental differ- 83 Pattern Makers v. NLRB, supra, 473 U.S. 95. 38 Scofield v. NLRB, supra, 394 U.S. at 430. 39 See Pattern Makers v. NLRB, supra, 473 U.S. 95. 49 NLRB v. Textile Workers Local 1029, supra, 409 U.S. at 217. Contrary to the majority's contention, the Board's decision in Molders Local 125 (Blackhawk Tanning), 178 NLRB 208 (1969), does not support their conclusion. The Board in Blackhawk Tanning found that a union does not violate Sec. 8(bX1XA) by expelling an employee for filing a de- certification petition. Filing a decertification petition, like resigning from a union and crossing a picket line, is protected conduct. The Board in Blackhawk Tanning, however, assumed that the employee remained a union member. Thus, unlike the Respondent in this case, a union in those circumstances could properly avail itself of the proviso. The Board's conclusion in Blackhawk Tanning is also consistent with the Scofield test. Since the employee remains a union member, it does not offend national labor policy to allow the union to sanction him for acting against the union's interest. See NLRB v. Allis-Chalmers Mfg. Co., supra, 388 U.S. 175 (no violation to fine employee-member for crossing picket line). The sanction considered in Blackhawk Tanning—expulsion—is also carefully tailored to the union's mterest. Expelling the employee denies him access to the union's strategy and tactics in warding off the decertifi- cation effort. Blackhawk Tanning, supra, 178 NLRB at 208. Finally, an employee in similar circumstances today would have had available to him or her the opportunity to leave the union and escape the rule as a matter of law. See Pattern Makers v. NLRB, supra, 473 U.S. 95. Had the em- ployee considered in Blackhawk Tanning availed himself of that opportu- mty, and thereafter filed his petition, I would find that he had insulated himself from union sanction. Our colleagues apparently would not. 43 If the employee requests reinstatement to union membership, how- ever, Member Cracraft would join Chairman Miller in finding that a union may "make its benefits unavailable to individuals who have acted contrary to the union's best interest." She would also join the majority's conclusion that "we should protect the union members who choose to stay [in the union] from compelled association with those who choose to leave." Continued 1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ence between our position and that of Chairman Miller and our colleagues is that we find, consistent with an employee's right to resign union member- ship, that the choice whether to subject oneself to union rules and union sanctions must remain solely with each employee. To find, as the majority fmds, that employees may resign union membership, but are nevertheless subject to union sanction, makes a mockery of that right. Conclusion We would find that the Respondent violated Section 8(b)(1)(A) by suspending employees for failing to pay dues after they resigned, and by sus- pending employees for crossing the Respondent's picket lines and returning to work after they re- signed. Similarly, Member Cracraft agrees with the First Circuit's decision in General Electric based on the manner in which the court framed the issue. The court asked: "[M]ay a union bar membership to employees who have engaged in strikebreaking after having resigned from the umon?" NLRB v. Machinists District 99 (General Electric), 489 F.2d 769, 770 (1st Cir. 1974). The court concluded, "[T]he policy of allowing a union to control access to its membership is central to the relationship between the union and all employees." Id at 771 "[T]he proviso of [Sec.] 8(b)(1XA) pre- serves a union's most basic power: that of grantmg or withholding mem- bership." Id. at 772. Unfortunately, the court's characterization of the issue was not consist- ent with the facts No one applied for membership in that case. Rather, the union suspended for 5 years employees who had resigned and later crossed the union's picket line and returned to work. Chairman Dotson finds it unnecessary to determine whether a union, which has violated Sec. 8(b)(1)(A) by fining or otherwise sanctioning an employee who lawfully resigns for his postresignatron conduct, may law- fully deny that employee's request for reinstatement inasmuch as that issue is not before the Board in this case. 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 maintain or give effect to the fol- lowing provision in our bylaws or other governing documents: In addition, it is declared to be the policy of this Local Union that consistent with Article XVI and XVII, of the Constitution of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, that no employee seeking to resign, requesting a Retiring Card or requesting a Transfer Card shall be entitled to receive such a card and his resignation shall [be] of no force and effect during any period in which economic actions against the employee's current employer is im- minent or in progress. This policy is declared in consideration of the fact that each member obligated himself/herself upon becoming a member to never knowingly wrong a fellow member and further in consideration of the fact that in the event of a strike and/or lock- out all members are relying upon all of the other members for mutual aid and protection in accordance with Section 7 of the National Labor Relations Act and the fellow members oath of obligation upon becoming a member of this International Union. WE WILL NOT restrain or coerce you by telling you it would be futile to resign your union mem- bership or otherwise threaten you with discipline if you were to resign your union membership. WE WILL NOT restrain Or coerce you by impos- ing fmes on you for resigning your union member- ship and returning to work during the 1980 strikes against E & E Meats, Inc. and King's Command Meats, Inc. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL remove from our bylaws and other governing documents the provision set forth above. WE WILL rescind the fmes levied against Edith Banchero, Kathleen Derda, Charles Mitchell, Jay Ness, Ina May Chmela, Michael Heier, Fred Ora- hood, David Horn, Donald Baer, Ann Miccolupi, and Irene Taylor and refund to them any moneys they may have paid as a result of the fines, with interest. WE WILL remove from our records any refer- ences to the fines imposed against the above-named employees and inform them, in writing, that such action has been taken. MEAT CUTTERS UNION LOCAL 81 UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO-CLC Cora Vaughn, Esq., for the General Counsel. John E. Rinehart, Jr., Esq. (Hafer, Cassidy & Price), of Seattle, Washington, for the Respondent. Judith H Perkins, of Seattle, Washington, for the Charg- ing Parties. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge. This case was tried at Seattle, Washington, on June 16, 1981. The charges were filed by Michael E. Heier on or about Sep- FOOD & COMMERCIAL WORKERS LOCAL 81 (MACDONALD MEAT CO.) 1093 tember 23, 1980; 1 by Judith H. Perkins on or about Sep- tember 26, 1980; and by David Horn on or about De- cember 3, 1980, against Meat Cutters Union Local 81, United Food and Commercial Workers International Union, AFL-CIO-CLC (the Union or Respondent). A consolidated complaint and notice of hearing was issued on January 12, 1981, which alleged that Respondent in- stituted intraunion disciplinary proceedings for crossing picket lines during strikes despite the fact that the mem- bers had tendered resignations or had been advised by the Union that submission of resignations would be futile, prior to crossing picket lines during these strikes in viola- tion of Section 8(b)(1XA) of the National Labor Rela- tions Act (the Act), 29 U.S.C. § 151 et seq. The Union asserts that it had imposed, through a resolution amend- ing its bylaws, a lawful and efficacious restriction on the power to resign and that enforcement of that restriction was lawful. The parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been filed by the Union and the General Counsel in a'timely manner, have been carefully consid- ered. On the entire record, I make the following FINDINGS OF FACT The facts were introduced by stipulation. The stipula- tion included agreement that Respondent is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. It was further stipu- lated that the charges and complaint involved three em- ployees, MacDonald Meat, Inc., E & E Meats, and King's Command Meats, Inc., Washington corporations that are employers engaged in commerce and in a busi- ness affecting commerce within the meaning of Section 2(6) and (7) of the Act and, accordingly, I so find. The parties further stipulated: 7. On or about March 15, 1977, by a vote of its membership, Respondent adopted the following amendment to its bylaws: WHEREAS: Local #81 formed over 75 years ago, in April 1900, to improve the working con- ditions in the meat industry in this area, and WHEREAS: It has continually improved the wages, hours and working conditions of its mem- bership over the years, and WHEREAS: It now faces greater concentration of oppositions in its continuing effort to improve the economic, social and working conditions of the membership, and WHEREAS: The objective set forth in the Con- stitution of this Local Union imposes upon each and every member the duty to exercise his union citizenship to comply with union rules and to support this Local Union, All dates are in 1980 unless otherwise Indicated. NOW THEREFORE BE IT RESOLVED, that in the event it becomes necessary for this Local Union to take economic action against any em- ployer as a result of negotiations with Allied Em- ployers, Inc., or with respect to any other Em- ployer in the Meat Industry within its jurisdic- tional area, it is hereby declared to be the policy of this Local Union that any member failing to respect any picket line established by this Local Union or any other bonafide picket line estab- lished by any other Union shall be subject to a tine of not less than two hundred and fifty ($250.00) dollars and not more than five hundred ($500.00) dollars for each violation found by the Executive Board of this Local Union in accord- ance with the Constitution of this Local Union and of the Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. In addition, it is declared to be the policy of this Local Union that consistent with Article XVI and XVII, of the constitution of the Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, that no employee seeking to resign, requesting a Retiring Card or requesting a Transfer Card shall be entitled to re- ceive such a card and his resignation shall [be] of no force and effect during any period in which economic actions against the employee's current employer is imminent or in progress. This policy is declared in consideration of the fact that each member obligated himself/herself upon becoming a member to never knowingly wrong a fellow member and further in consideration of the fact that in the event of a strike and/or lockout all members are relying upon all of the other mem- bers for mutual aid and protection in accordance with Section 7 of the National Labor Relations Act and the fellow members oath of obligation upon becoming a member of this International Union. 8. (a) At all times material herein, the following- named individuals were employed by E & E Meats, Inc.: Edith Banchero Kenneth Banchero Patrick Brown Leslie Banchero Roger Peterson Ina May Chmela Jay Ness Kathleen Derda Michael Heier Charles Mitchell Gary Orahood Fred Orahood (b) At all times material herein the individuals named in subparagraph (a) above were members of Respondent union. (c) On or about August 29, 1980, during a mem- bership meeting, Respondent announced that a strike would commence on September 2, 1980, against E & E Meats. (d) During the membership meeting described above in subparagraph 8(c), Respondent distributed the resolution described in paragraph 7 to its mem- 1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bers and employees of E & E Meats, Inc., including the individuals named in subparagraph 8(a). (e) On or about September 2, 1980, Respondent commenced picketing the facility of E & E Meats, Inc. (f) On or about September 2, the employees and members named in subparagraph 8(a) tendered by letter, their resignations to Respondent. (g) Subsequent to the receipt of their resignation by Respondent, commencing on or about Septem- ber 2, 1980, the employees named in subparagraph 8(a) crossed the picket line established by Respond- ent described above in subparagraph 8(e) and re- turned to work at E & E Meats, Inc. (h) On or about September 18, 1980, Respondent, by and through its agent Casey, by letter, communi- cated to the employees named in subparagraph 8(a) as follows: You are cited to appear at the Executive Board meeting of Local 81 on Monday, October 6, 1980, 7:30 p.m., at the above address to explain going to work through a primary picket line es- tablished by Local 81 on September 2, 1980, and subsequent days. Failure to appear will result in action being taken in absentia, as provided by the International Con- stitution, Section 26, and the Bylaws of Local #81, a copy of which is attached. (i) In or about January, 1981, Respondent fined the below-named employees $250 and suspended them from membership because they engaged in the conduct described above in subparagraph 8(g): Edith Banchero Ina May Chmela Kathleen Derda Michael Heier Charles Mitchell Fred Orahood Jan Ness [sic] (j) In or about January, 1981, Respondent sus- pended the below-named employees from member- ship for failure to pay dues: Patrick Brown Leslie Banchero Roger Peterson Gary Orahood Kenneth Banchero (k) On or about January 21, 1981, in case No. 19- RD-1562, Respondent was decertified as the collec- tive-bargaining representative of E & E Meats' em- ployees, including the employees named above in subparagraph 8(a). 9, (a) At all times material herein, the following named individuals were employed by King's Com- mand Meats, Inc.: David Horn Donald Baer Ann Miccolupi Irene Taylor (b) At all times material herein, the individuals named in subparagraph 9(a) were members of Re- spondent. (c) On or about September 25, 1980, Respondent, at the facility of Kings Command Meats, Inc., by and through its agent Anderson, distributed to its members including the employees named in 9(a) the resolution described in paragraph 7. (d) On or about September 25, 1980, Respondent, during a membership meeting announced that it would establish a picket line at King's Command Meats, Inc., commencing September 26, 1980. (e) Commencing on or about September 26, 1980, Respondent commenced picketing King's Command Meats, Inc. (f) During the period from September 26 to Sep- tember 29, the employees named above in Subpara- graph 9(a) by telegram tendered their resignations to Respondent. (g) Subsequent to the receipt of their resignations by Respondent, [communicated] on or about Sep- tember 29, 1980, [with] the employees named in subparagraph 9(a) as follows: In conformance with Article 25B.14 of the U.F.C.W. International Constitution (copy en- closed), you are herewith charged by Stephen P. Andersen, a member of Local #81, with the fol- lowing offenses. 1. During the week of September 28, 1980, through October 4, 1980: Crossing a bonafide Local #81 picket line at King's Command Meats, 1515-15th Avenue West. 2. During the period from September 28, 1980, through November 21, 1980: Working behind a bonafide Local #81 picket line at the above named Company. As your actions, outlined in the above charges, had a serious effect on Local #81 during a strike situation, you are directed to appear before a Trial Committee (as per Article 26 of U.F.C.A. International Constitution) to answer the above stated charges. At the Trial Committee, you will be allowed, if you so choose representation by a member of Local #81. You will be notified of the date, time and place of your appearance. (i) In or about January 1981, Respondent fined employees named in subparagraph 9(a) $250 and suspended them from membership because they en- gaged in the conduct described above in subpara- graph 9(g). (j) On or about December 10, 1980, in case No. 19-RD-1567, Respondent was decertified as the collective bargaining representative of the employ- ees employed by King's Command Meats, Inc. in- cluding the employees named above in subpara- graph 9(a). 10. (a) At all times material herein, the following- named individuals were employed by MacDonald Meat Co.: FOOD & COMMERCIAL WORKERS LOCAL 81 (MACDONALD MEAT CO.) 1095 Tommy Favre Terry Perkins Judith Perkins Gene Gray Bob Kiyohara Vernon Olson (b) At all times material herein, the individuals named in subparagraph 10(a) were members of Re- spondent, except Vernon Olson, Terry Perkins and Gene Gray who had tendered their initiation fees but had not been initiated. (c) On or about August 29, 1980, during member- ship meeting, Respondent announced that a strike would commence against MacDonald Meat Co. on September 2, 1980. (d) On or about September 2, Respondent com- menced picking [sic] the facility of MacDonald Meat Co. (e) On or about September 2, 1980, at MacDon- ald's Meat Co.'s facility, Respondent distributed the resolution described in paragraph 7 to its members and employees of MacDonald Meat Co., including the employees named in subparagraph 10(a), while they were in a picket line. (1) On or about September 3, 1980, the employees named above in subparagraph 10(a), crossed the picket line established at MacDonald Meat Co., by Respondent and returned to work at MacDonald Meat Co. (g) On or about September 18, 1980, Respondent, by and through its agent Casey, by letter, communi- cated to the employees named in subparagraph 10(a) as follows: You are cited to appear at the Executive Board meeting of Local #81 on Monday, October 6, 1980, 7:30 p.m., at the above address to explain going to work through a primary picket line es- tablished by Local #81 on September 2, 1980, and subsequent days. Failure to appear will result in action being taken in absentia, as provided by the International Con- stitution, Section 26, and the Bylaws of Local #81, a copy of which is attached. (h) On or about October 6, 1980, the employees named above in subparagraph 10(a) appeared indi- vidually before Respondent's Executive Board at Respondent's facility. (i) During the meeting described above in sub- paragraph 10(g), Respondent advised the employees named above in subparagraph 10(a) that fines would be levied against them for returning to work during the strike against MacDonald Meat Co., which commenced on or about September 2, 1980. (j) On or about December 23, 1980, Respondent by and through its agentCase [sic], by letter, com- municated to at leatt one of the employees named in subparagraph 10(a), Bob Kiyohara, as follows: In conformance with Article 26 of the U.F.C.W. International Constitution you are herewith di- rected to appear before a Trial Committee on January 7, 1981, at 8:00 p.m., 2800 1st Avenue, Room 216. The purpose of your appearance is to answer charges stated in our letter of November 25, 1980, namely either crossing or walking behind a primary Local #81 picket line during the time of Local #81's strike against your employer. At the Trial Committee you will be allowed, if you so choose, representation by a member of Local #81. (A licensed attorney will not be al- lowed.) If you elect not to appear or respond, you will be deemed to have entered a plea of not guilty and the trial will proceed. The penalty, for a person found guilty, will be set by the Trial Committee. (k) In or about January, 1981, Respondent fined the below-named individuals $250 and suspended them from membership because they engaged in the conduct described above in subparagraph 10(0. Tommy Favre Bob Kiyohara (1) In or about January, 1981, Respondent sus- pended the below-named individuals from member- ship for failure to pay dues: Judith Perkins Terry Perkins Gene Gray (m) On or about December 7, 1980, in case No. 19-RD-1563 Respondent was decertified as the col- lective bargaining representative of the employees employed by MacDonald Meat Co., including the employees named above in subparagraph 10(a). The parties agree that the foregoing are facts for the purposes of this proceeding, although they re- serve the right to object to the materiality or rel- evance of the stipulated facts. Position of the Parties Respondent argues that under the proviso to Section 8(b)(1)(A) of the Act, a labor organization has the right to "prescribe its own rules with respect to the acquisition or retention of membership therein." Concomitantly, the Union asserts that under this proviso it has the power to discipline members for violations of rules enacted pursu- ant to that proviso, for example, rules regarding crossing picket lines and returning to work during a strike where the member had not legally and effectively resigned from the union. Citing NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 181 (1967), and NLRB v. Textile Workers Local 1029, Granite State Joint Board, 409 U.S. 213, 217 (1972). The cases cited by Respondent did not affirm the validi- ty of express restrictions on the right of members to resign, and there are limitations in the Act on such re- strictions, as the Union recognized in its brief. However, the Union argues that the restriction in this particular proceeding is valid because it is reasonable; 2 it is clear 2 Citing Hendricks-Miller Typographic Co., 240 NLRB 1082, 1097 (1979), 1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and unambiguous; 5 and is not unduly broad and unneces- sary to serve legitimate union interests in support of a strike.4 Respondent notes that the bylaw here under consider- ation had previously been in issue before the Board in Meat Cutters Local 81 (Tr-City Meats), 241 NLRB 821 (1979), but the proceeding was dismissed because the charging employer had not been struck, none of the em- ployees attempted to resign, and no union members who did tender resignations had been disciplined.5 Finally, the Union argues that the bylaw is narrowly limited to restrict the effectiveness of resignations to those instances when the strike is taking place or a strike is imminent and therefore reasonably serves the funda- mental union interests of preserving solidarity during a strike. 6 This clear, unambiguous, narrowly tailored pro- vision, Respondent argues, does not contravene the member's Section 7 rights. The term "imminent," ac- cording to Webster's New Collegiate Dictionary, Re- spondent claims, is defmed as "ready to take place; espe- cially hanging threateningly over one's head." That is unambiguous, it is argued. Further, it is averred that there is no difficulty in construing the term "imminent" in the bylaw inasmuch as the Charging Parties had at- tempted to resign after the strike commenced. There is no question that the Charging Parties had actual knowl- edge of the restriction, the Union argues. ? The Union points out that, according to the stipulation, the Charg- ing Parties had knowledge of the bylaw through receipt of copies at the meetings when the strikes were called or when the strikes began if, in fact, they did not have knowledge prior to that time. Further, it is noted that the Union had received their consent to the restriction by adopting the bylaw through a membership vote on March 15, 1977. 5 Accordingly, it is urged that the 3 Citing Broadcast Employees NABET Local 531 (Skateboard Produc- tions), 245 NLRB 638 (1979). 4 Citing Automobile Workers Local 1384 (Ex-Cell-0), 227 NLRB 1045, 1051 (1977). 5 Then Member Murphy's statement that the bylaw was properly adopted and reflects legitimate interests is quoted by the Respondent. Be- cause the decision was admittedly dismissed for reasons other than a find- ing that the resolution in the bylaws in issue herein is a reasonable restric- tion on the nghts of members under Sec. 7 to resign their membership in the Union, and Member Murphy's statement is contained m a concurring opinion, this statement is not dispositive of the lawfulness and/or efficacy of the bylaw. 6 In addition to citing Automobile Workers Local 1384 (Ex-Cell-0), supra, Respondent cites Electrical Workers Local 444, 235 NLRB 98, 103 (1978) 7 Citing Oil Workers Local 6-578 (Gordy's Inc), 238 NLRB 1227, 1230 (1978); NLRB v. Machinists Lodge 1871 (General Dynamics), 575 F.2d 54, 55 (2d Cir 1978); and Machinists Booster Lodge 405 (Boeing Co.) v. NLRB, 412 U.S. 84 at 88 (1973). Respondent also asserts that the Ninth Circuit, in NLRB v. Machinists Local 1327 (Dalmo Victor), 231 NLRB 719 (1978), remanded 608 F.2d 1219, 1222 (9th Cir. 1979), indicated that restrictions on the right of a member to resign, as provided in the Meat Cutters bylaws, are valid pro- visions and, although Respondent recognizes that the Dalmo Victor deci- sion is not precedential, the Board's recent adoption of the findings and conclusions of the Administrative Law Judge Timothy Nelson in the case of Pottery Workers (Colton Mfg.), 254 NLRB 696 (1981), indicates Board adoption of the Dalmo Victor reasoning. This assertion is without merit for the administrative law judge in Colton Mfg. noted that the Board, in Dalmo Victor, supra, did not consider the union's conduct to constitute a restriction on the member-employees' right to resign membership, and bylaws be found to provide a reasonable, unambiguous, and narrowly tailored restriction reflective of the Union's legitimate interest within the proviso of Section 8(b)(1)(A), and therefore not violative of that section of the Act. Counsel for General Counsel argues that under the facts of this case the Union's restrictions against resigna- tions of membership at the times specified in its bylaws are not sufficiently reasonable to fall within the proviso of Section 8(b)(1)(A) and should be construed as unrea- sonable restraints on an employee's Section 7 right to return to work after an effective resignation from the Union. 5 Relying on Granite State, supra, counsel for the General Counsel argues that the Union's interest in the rule of maintaining a unified front during a strike is insuf- ficient to vitiate the employees' interest in resigning. It is also averred that a restriction similar to or identical with the one under consideration has not been ruled on by the Board or courts. Counsel for the General Counsel notes that the prior determinations of the Board and courts re- quire a finding that the employees' right to resign during times of economic sanction by the Union is a right guar- anteed by Section 7 of the Act, hence, it is asserted that the bylaws are an unreasonable restriction on that right, and therefore are unlawful." In sum, counsel for the General Counsel argues that the bylaws are an outright prohibition against resignation pending immediate eco- nomic sanctions or during the strike, which is tanta- mount to revoking the members' rights to refrain from organized protected concerted activity under Section 7 of the Act; and that the Section 7 right provides a limita- tion against the rights accorded unions under Section 8(b)(1)(A) of the Act to such an extent that Respondent Union's disciplinary actions against the employees who crossed their picket line after such resignation is a viola- tion of Section 8(b)(1)(A) of the Act. Counsel for the General Counsel also argues that those individuals who did not resign should be found to have determined that it was futile to tender resignations because they were ad- vised by the Union that their resignations would not be accepted and that such advice is, in and of itself, an un- reasonable restriction on their Section 7 rights and is a violation of Section 8(b)(1)(A) of the Act. The General Counsel requests as a remedy that Re- spondent be ordered to cease and desist from enforcing its bylaws that prohibit resignations during a period of economic action or when economic action is imminent, through the imposition of discipline; the recision of all fmes and other disciplinary action taken against the em- ployees named above; and any other remedies deemed appropriate by the administrative law judge. further stated that the facts of Dalmo Victor were in apposition to those in Colton MA 9 Counsel for the General Counsel relies particularly on the Ex-Ce1-0 Corp., decision and Granite State Joint Board, supra. The General Counsel also cites Automobile Workers (General Electric), 197 NLRB 608 (1972); Boeing Co., supra, and Scofield v. NLRB, 394 U.S. 423 (1969). 10 The General Counsel also cites Administrative law Judge Shapiro's decision in Teamsters Local 439 (Loomis Courier), 237 NLRB 220 (1978). FOOD & COMMERCIAL WORKERS LOCAL 81 (MACDONALD MEAT CO.) 1097 Analysis and Conclusions The right of an employee to resign from a union is governed by two sections of the Act, Section 7 11 and Section 8(b)(1)(A).12 The Section 7 of the Act right to refrain from engag- ing in concerted activities, such as a strike," appears in this proceeding to be antipodal to the provision of Sec- tion 8(b)(1)(A) of the Act that permits the Union to set its own rules with respect to the acquisition or retention of membership in the organization. Examination of the legislative history of the 1947 amendments to the Taft- Hartley Act in 1947 does not seem to eliminate or reduce the apparent polarity of these provisions. As the Su- preme Court stated in NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 at 179 (1966): [W]e have only this Term again admonished that labor legislation is peculiarly the product of legisla- tive compromise of strongly held views, Local 1976, Carpenters' Union v. Labor Board, 357 U.S. 93, 99- 100, and that legislative history may not be disre- garded merely because it is arguable that a provi- sion may unambiguously embrace conduct called in question. National Woodworker Mfrs. Assn. v. N.L.R.B., 386 U.S. 612, 619-620. Indeed, we have applied that principle to the construction of § 8(b)(1)(A) itself in holding that the section must be construed in light of the fact that it "is only one of many interwoven sections in a complex Act, mind- ful of the manifest purpose of the Congress to fash- ion a coherent national labor policy." Labor Board v. Drivers Local Union, 362 U.S. 274, 292. The Court reviewed the legislative history of Section 8(b)(1)(A) and Section 7 of the Act, and concluded: Thus this history of congressional action does not support a conclusion that the Taft-Hartley prohibi- tions against restraint or coercion of an employee to refrain from concerted activities included a prohibi- tion against the imposition of fmes on members who decline to honor an authorized strike and attempts " Sec. 7 of the Act provides: Employees shall have the right to self-organization, to form, J0111, or assist labor organizations, to bargain collectively through representa- tives of their own choosing, and to engage m other concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in section 8(a)(3). [Emphasis added.] There is no reference in the stipulation to the existence of a union-securi- ty clause or other provision encompassed in the 8(a)(3) exception to the terms of this section. Therefore, it is concluded that no such changes are involved in this case. 12 Sec, 8(b)(1)(A) states: (b) It shall be an unfair labor practice for a labor organization or its agents— (1) to restrain or coerce (A) 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 prescribe its own rules with re- spect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances. . . . 14 Boring Co, supra. to collect such fmes. Rather, the contrary inference is more justified in light of the repeated refrain throughout the debates on § 8(b)(1)(A) and other sections 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. [Id. at 195.] However, as noted by Justice White in his concurring opinion, the majority opinion does not validate every conceivable internal union rule that impinges upon a union member's Section 7 rights. (Id. at 198.) See further the Court's statements in Boeing Co., supra, 412 U.S. at 88.14 Also, "when there is a lawful dissolution of a union- member relation, the union has no more control over the former member than it has over the man in the street." Granite State, supra 409 US. at 217. See further Boeing Co., supra, 412 U.S. 84, 88. Therefore, the threshhold issue is whether those mem- bers of the Union that tendered their resignations to the Respondent lawfully dissolved their memberships. Essen- tial to this determination is resolution of the question of the lawfulness of the Union's bylaws. That bylaws rather than constitutional or other provisions are involved does not alter these considerations, for as the Supreme Court indicated in Granite State, supra; "Neither the contract nor the union's constitution or bylaws contained any pro- vision defming or limiting the circumstances under which a member could resign [409 U.S. at 214] . . . . We have here no problem of construing a union's consti- tution or bylaws defining or limiting the circumstances under which a member may resign from the union." [Id. at 216]. Similarly, the Supreme Court stated in its per curiam opinion in Boeing Co., supra, that: "Neither its [the union's] constitution or its bylaws contained any provision expressly permitting or forbidding such resig- nations. [412 U.S. at 85-86.] [We] leave open the ques- tion of the extent to which contractual restriction on a member's right to resign may be limited by the Act." (Id. at 88.) The lawfulness of the bylaws is resolved through the balancing of policy in the same process that the seeming polarity between Section 7 and the proviso of Section 8(b)(1)(A) of the Act is resolved. In Scofield v. NLRB, 394 U.S. 423 (1969), the Supreme Court stated: [I]n judging the fairness or wisdom of particular union rules, it has become clear that if the rule in- vades or frustrates an overriding policy of the labor laws the rule may not be enforced, even by fine or expulsion, without violating Section 8(b)(1) [Id. at 429.] Under this dual approach, 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 labor laws, 14 "And here, as there [citing NLRB v. Granite State, supra, 409 U.S. 2131, we leave open the question of the extent to which contractual re- striction on a member's right to resign may be limited by the Act." 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and is reasonably enforced against union members who are free to leave the union and escape the rule. This view of the statute must be applied here. [Id. at 430.] . . . . The inquiry must therefore focus on the legitima- cy of the union interest vindicated by the rule and the extent to which any policy of the Act may be violated by the union-imposed [rule]. . . . [Id. at 431.]'5 . . . . Although the enforcement of the rule is handled as an internal union matter, the rule has and was in- tended to have an impact beyond the confines of the union organization. But as Allis-Chalmers16 and Marine Workers17 made clear, it does not follow from this that the enforcement of the rule violates Section 8(b)(1)(A), unless some impairment of a statutory labor policy can be shown. [Id. at 431.] That the employees of MacDonald Meat Co., named hereinabove, did not tender resignations from the Union does not, of necessity, alter the application of the law cited herein for even if they had tendered written resig- nations after being informed of the resolution, the terms of the resolution would have precluded the acceptance of the resignations. As stated in Carpenters Local 1233 (Polk Construction Co.), 231 NLRB 756 (1977): Compliance with the specified procedure being a fu- tility, and the law not requiring futile ritual, the legal sufficiency of the July 9 oral resignations de- pends, then, upon whether the source of that futili- ty—section 47(B)—is a valid bar to resignations sub- mitted to escape union rules and attendant disci- pline. Cf. International Union, United Automobile, Aerospace and Agricultural Implement Workers of • America, Local 469 (Master Lock Company), 221 NLRB 748 (1975); Local 1384, United Automobile, Aerospace, Agricultural Implement Workers, UAW (Ex-Cell-0 Corporation) [supra]; Local 205, Lithogra- phers and Photoengravers International Union, AFL- CIO (The General Gravure Service Co. Inc.), 186 NLRB 454 (1970); Booster Lodge 405, International Association of Machinists and Aerospace Workers, AFL-CIO (The Boeing Co.) [supra]. Therefore, the question of the validity of the resolution to lawfully permit the threat of fines and imposition of discipline obtains to all the above-identified employees. As indicated by the Board in Automobile Workers Local 1384 (Ex-Cell-0 Corp.), 219 NLRB 729 at 748 (1975), there must be a showing that the employees knew or consented to the bylaws provisions hereunder consid- eration. Knowledge is found herein, based on the stipula- tions that the membership of Respondent elected to adopt the bylaws; and that during the membership meet- ings where the announcements of the forthcoming strikes against E & E Meats, Inc. and King's Command Meats, 15 The rule involved in Scofield is a production ceiling. la NLRB v. Allis-Chalmers Mfg. Co., supra. 11 Shipbuilding Workers, 159 NLRB 1065 (1966). Inc. were made, Respondent distributed the bylaw pro- hibiting members from resigning when economic action was imminent or in progress. The same bylaw was dis- tributed to the employees of MacDonald Meat Co. while they were picketing and, it is argued by counsel for the General Counsel, that this distribution should lead to a finding that the above-named employees of MacDonald Meat Co. were informed that resignation would be futile for such resignations would not be accepted. That the employees had knowledge of the bylaw does not auto- matically require the conclusion that they consented to the loss of their Section 7 right to refrain from strikes and does not resolve the question of whether the restric- tion against resignation is so reasonable as to come within the ambit of the proviso to Section 8(b)(1)(A). In general, when weighing the Union's legitimate in- terests in maintaining solidarity while using its most ef- fective economic weapon, a strike, against its employee- member's right to refrain from such activity, the Su- preme Court, in the Granite State decision, supra, 409 U.S. at 217-218, noted that an employee's Section 7 right to resign from the union is not extinguished by participa- tion in a strike vote or in the initial stage of the strike. The Court explained that: Events occurring after the calling of a strike may have unsettling effects, leading a member who voted to strike to change his mind. The likely dura- tion of the strike may increase the specter of hard- ship to his family; the ease with which the employ- er replaces the strikers may make the strike seem less provident. . . . [Vi]e conclude that the vitality of Section 7 requires that the member be free to re- frain in November from the actions he endorsed in May and that his Section 7 rights are not lost by a union's plea for solidarity or by its pressures for conformity and submission to its regime. The Board has similarly held that: [B]alancing an individual's right under Section 7 to refrain from concerted activity following resigna- tion from a union against that of a union to maintain solidarity during a strike, we conclude that the latter must give way. Conformity may be none too high a price for the benefits of union membership. But the choice, at least in the absence of reasonable restrictions on resignations, is the individual's to make, not the union's. [Emphasis supplied.] Machinists Local 1994 (O.K. Tool Co.), 215 NLRB 651, 653 (1974). To find that the balance is weighted in Respondent's interests, there must be a finding of a "clear and unmis- takable" waiver of the member's statutory right to resign from the Union. See Timken Roller Bearing Co. v. NLRB, 325 F.2d 746, 751. Knowledge of the bylaw, which was adopted by the union membership on or about March 15, 1977, was shown, as found hereinabove. However, there was no showing of clear and unmistak- able waiver for it has not been established that the above-named employees voted on or otherwise adopted the resolution here in issue. Further, the informing of FOOD & COMMERCIAL WORKERS LOCAL 81 (MACDONALD MEAT CO.) 1099 member-employees of the bylaw restriction immediately prior to or during the strike effectively denied the mem- bers of an opportunity, under the terms of the resolution, to effectively resign and thus refrain from supporting the strike without being subject to discipline, which contra- venes Respondent's fiduciary duty to "deal fairly" with those members. Teamsters Local 439 (Loomis Courier), 237 NLRB 220 (1978), citing NLRB v. Hotel Employees Local 568 (Philadelphia Sheraton Corp.), 320 F.2d 254, 258 (3d Cir. 1963). See also Sheet Metal Workers Local 170 (Able Sheet Metal), 225 NLRB 1178 (1976), in which it held: Moreover, article 16, section 13 [of the Constitu- tion and Ritual], imposes the requirement that a res- ignation, to be effective, must be accepted by the local union and then stated that resignations ten- dered, inter alio, during a strike will not he accept- ed. Consequently, by its terms, the provision fore- closes, absolutely, the right of a member to freely terminate his membership where, as here, a strike is in progress. Such a rule may not be used to bar res- ignation since it too narrowly restricts the right of a member to be free to leave the union. See Local 1384, United Automobile, Aerospace, Agricultural Im- plement Workers, UAW (Ex-Cello Corporation), 218 NLRB 729, fn. 4 (1975). . . . Therefore, as this re- striction, alone, renders the provision, in effect, a denial of the right to resign, it is tantamount to no restriction at all on the right of voluntary resigna- tion and may not be invoked to bar a valid. . . res- ignation. International Union, United Automobile, Aerospace and Agricultural Implement Workers, UAW, and its Local No. 64Z (General Electric Com- pany), 197 NLRB 608, 609 (1972); International Union, United Automobile, Aerospace, Agricultural Implement Workers of America, Local 469 (Master Lock Company), 221 NLRB 748 (1975). There is no contention that, but for the resolution, the tendered resignations would not be considered valid, and it is so found. Even if it was assumed that the named employees con- sented to the limitations on their rights to resign, the res- olution is found to be unreasonable because its terms are unclear as it limits the right to resign to periods during which any economic actions are imminent or in progress. The term "economic action" is not defmed and could in- volve such a broad panoply of activity that it could be construed to effectively deny a member any right to resign. Respondent has failed to justify the use of the term to warrant a fmding that the Union's interests during any economic action outweighs the member-em- ployee's rights under Section 7 of the Act. Also the use of the term "imminent," it is argued, is clear and unam- biguous. Using "Webster's New Collegiate Diction- ary," 18 a "common meaning" of the term "imminent" was "ready to take place; esp. [especially] hanging threateningly over one's head." Contrary to Respond- ent's assertion, the term is not clear and unambiguous. A 18 No edition or year of publication was given with this reference. strike could be construed as imminent during long and difficult negotiations of a collective-bargaining agree- ment or near the termination of such a contract term. Furthermore, the restriction would apply during all eco- nomic actions, including strikes, which could last for many weeks or months. The bylaw therefore unreason- ably abrogates or impairs the right of members to elect to leave the Union as contemplated by the Supreme Court in Scofield v. NLRB supra at 430: Section 8(b)(1)(A) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has em- bedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule. If a member chooses not to engage in this con- certed activity and is unable to prevail on the other members to change the rule, then he may leave the union. . . . [Id. at 435.] [Emphasis added.] As the court stated in Granite State, supra, 409 U.S. at 217: Events occurring after the calling of a strike may have unsettling effects, leading a member who voted to strike to change his mind. The likely dura- tion of the strike may increase the specter of hard- ship to his family; the ease with which the employ- er replaces the strikers may make the strike seem less provident. Absent convincing evidence to the contrary, it is con- cluded that the record fails to present evidence that the rule restricting members' right of resignation outweighs the members' right under Section 7 of the Act to refrain from protected concerted activity. The resolution is found to be an invalid bar to resignation. Because the re- striction on resignation fails to meet the legal require- ments discussed hereinabove, it is found unenforceable and the resignations tendered to the Union by the above- named employees are found to be effective prior to their refusing to work. However, the stipulation is silent regarding the named member-employees of MacDonald Meat Co.'s reliance on the resolution as a basis for their failure to tender res- ignations. Also, it is stipulated that Vernon Olson, Terry Perkins, and Gene Gray were not members of the Union for they had not been initiated. Therefore, as to these three employees of MacDonald Meat Co., the Union had no more authority over them than the "man in the street." Granite State, supra, 409 U.S. at 217. The Gener- al Counsel's failure to show reliance by Tommy Favre, Judith Perkins, and Bob Kiyohara on the distributed res- olution precludes a finding that they failed to resign be- cause they knew such action was a futility or that the union actions were the source of that knowledge. Be- cause Tommy Favre, Judith Perkins, and Bob Kiyohara were still members of the Union, the Union was free to prescribe its own rules "with regard to the retention of membership therein." The evil is found with the threat to these employees preceding their crossing the picket 1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD line. The threat is restraining and coercive for it would tend to preclude the member from exercising the rights guaranteed under Section 7 of the Act to refrain from concerted activity. Accordingly, it is concluded that these threats were unlawful in violation of Section 8(b)(1)(A) of the Act. This conclusion does not, howev- er, permit of finding or reliance, since statements found violative of Section 8(b)(1) need not be shown to have resulted in reliance, rather, the tendency of the Union's action to restrain and coerce suffices and, as such re- quires a finding of a violation. Furthermore, because Vernon Olson, Terry Perkins, and Gene Gray were not members of the Union, and there was no showing that the payment of the initiation fee subjected them to treatment as members, it is con- cluded that disciplining nonmembers for the exercise of the protected right to refrain from concerted activity is clearly a violation of Section 8(b)(1)(A) of the Act. Accordingly, it is found that Respondent violated Sec- tion 8(b)(1)(A) of the Act by disciplining employees for crossing its picket line after they submitted resignations and advising them of the futility of submitting resigna- tions. CONCLUSIONS OF LAW 1. MacDonald Meat, Inc., E & E Meats, Inc., and King's Command Meats, Inc. are employers within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Meat Cutters Union Local 81, United Food and Commercial Workers International Union, AFL-CIO- CLC is a labor organization within the meaning of Sec- tion 2(5) of the Act, 3. By threatening and imposing fines on Edith Ban- chero, Kathleen Derda, Charles Mitchell, Jay Ness, Ina May Chmela, Michael Heier, and Fred Orahood and dis- ciplining by suspension from membership for failure to pay dues these employees plus Patrick Brown, Roger Pe- terson, Kenneth Banchero, Leslie Banchero, and Gary Orahood, employee-members who had resigned their membership, for postresignation activities during the strike at E & E Meats, Inc., Respondent restrained and coerced these employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. By threatening and suspending from membership and imposing fmes on David Horn, Donald Baer, Ann Miccolupi, and Irene Taylor, who had resigned their membership, for postresignation work during the strike at King's Command Meats, Inc., Respondent restrained and coerced these employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby en- gaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 5. By threatening to fme Tommy Favre, Judith Per- kins, Bob Kiyohara, Terry Perkins, Gene Gray, and Vernon Olson, and suspending Terry Perkins and Gene Gray because they worked during the strike at MacDon- ald Meat Co.'s facility after Respondent advised these employees that any attempts to resign from the Union while economic actions against the member-employees' employers are imminent or are in progress, Respondent restrained and coerced these employees in the exercise of the rights guaranteed them in Section 7 of the Act, and Respondent thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent did not otherwise violate the Act as al- leged. THE REMEDY Having found that Respondent has engaged in, and is engaging in, certain unfair labor practices, it is recom- mended that it be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act. It is also recommended that Re- spondent rescind the unlawful suspensions and fmes and refund any money paid to it as a result of its unlawful conduct, with interest, in accord with the formula pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977). [Recommended Order omitted from publication.]