Transit Union Local 1225 (Greyhound Lines)

TRANSIT UNION LOCAL 1225 (GREYHOUND LINES) Amalgamated Transit 1225, AFL-CIO, Inc. Amalgamated Transit 1222, AFL-CIO, Inc. Union Local Division , No. CLC and Greyhound Lines Union Local Division No. CLC and Greyhound Lines, Amalgamated Transit Union Local Division No. 1225, AFL-CIO, CLC and Joseph James Heck III and Charles H. Wood and Henry S. Miller and Dawn Rene Cook and Boyd Dewayne Dillon and James R. Mosher and Courtney Roscoe Carlson and Allen Dwight Dauphine and Richard Drury Longstreth, Jr. and Steven Edward Swope. Cases 28-CB-2244-1, Case 28- CB-2244-4, 28-CB-2297 (formerly 20-CB- 6084), 28-CB-2300 (formerly 20-CB-6146), 28-CB-2301 (formerly 20-CB-6172), 28-CB- 2302 (formerly 20-CB-6178), 28-CB-2303 (formerly 20-CB-6187), 28-CB-2304 (formerly 20-CB-6189), 28-CB-2305 (formerly 20-CB- 6212), 28-CB-2306 (formerly 20-CB-6224), 28-CB-2307 (formerly 20-CB-6248), 28-CB- 2313, and (formerly 20-CB-6197) 24 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 10 May 1985 Administrative Law Judge Clif- ford H. Anderson issued the attached decision. The General Counsel and the Respondent Local 1225 filed exceptions and supporting briefs, and the Re- spondents jointly filed an answering brief to the General Counsel's exceptions. 'The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions as modified, to modify the remedy,' and to adopt the recommended Order as modified.2 We adopt the judge's finding, based on Commu- nications Workers Local 5795 (Western Electric), 192 NLRB 556 (1971), that Respondent Local 1222 did not, as alleged, violate Section 8(b)(1)(A) of the L In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S.C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 2 We shall modify "Appendix A" of the judge's decision to correct an inadvertent error in the notice to be posted by Respondent Local 1222 Additionally, we note that, in the last sentence of par 10 of sec C of his decision, the judge inadvertently refers to "King's activities," rather than to "Gardner's activities," when it is clear from the context that Gardner was the employee under discussion, 1051 Act by disciplining members Gardner and King for informing the Employer about the alleged job mis- conduct engaged in by their fellow members.3 In the absence of exceptions , we also adopt the judge's refusal to defer this case to the parties' grievance-arbitration procedure and his finding that the Respondents violated Section 8(b)(1)(A) by their conduct in derogation of the amnesty agree- ment that they entered into with the Employer.4 We reverse, however, the judge's further finding that Respondent Local 1225 violated Section 8(b)(1)(A) and (2) by attempting to collect union dues for December 19835 from 30 employees who had resigned from the Union and conclude that the violation was made out only for the 24 employees who had resigned before December and only for the portion of that month when no union-security clause was in effect. Pursuant to the dues-checkoff provision in the 1983 contract, Respondent Local 1225 attempted to collect December 1983 dues from the Employer for 30 employees who had resigned their union memberships and returned to work during the 3 November-19 December strike. The evidence shows that 24 of these employees resigned in No- vember but that the remaining 6 did not resign until after 1 December. The constitution of the Amalgamated Transit Union, which is applicable to Local 1225, provides that dues are charged each month from the first day of the month and that those individuals who become union members before the 20th day of the month must pay dues for the entire month. Employees joining after the 20th day of the month, however, are not required to pay dues until the following month. The dues- 41 3 Chairman Dotson does not agree that the fines and discipline im- posed by Local 1222 on Gardner and King, for having informed their Employer of the work rule violations of other employee members, were lawful. Rather he finds, in agreement with former Member Dennis' posi- tion in Oil Workers Local 7-103 (DAP, Inc), 269 NLRB 129 (1984), that a union rule, which authorizes a union to discipline a member for reporting on a fellow member's infraction of an established work rule, serves no legitimate union interest and contravenes the national labor policy favor- ing the observance of valid rules governing the workplace Accordingly, he finds that a union's attempt to enforce such a rule against employee members who engage in the above-described conduct, as Local 1222 did with respect to Gardner and King, violates Sec. 8(b)(1)(A) of the Act, regardless of whether or not employees are required to report work rule violations to their employer In this regard, Chairman Dotson would overrule Western Electric, supra, to the extent it is inconsistent with his stated views here. 4 The General Counsel has excepted, inter alia, to the judge's failure to find that the Respondents also violated Sec. 8(b)(3) of the Act by their refusal to abide by the amnesty agreement- Because the Respondents' un- lawful conduct vis-a-vis those members they fined and expelled for cross- ing the picket line during the strike will be remedied by our 8(b)(1)(A) finding, we find it unnecessary to decide the 8(b)(3) issue Chairman Dotson agrees with the General Counsel that the Respond- ents' refusal to abide by the amnesty agreement violates Sec 8(b)(3) of the Act Teamsters Local 670 (Stayton Canning), 275 NLRB 911 (1985) 5 All dates are in 1983 unless otherwise noted. 285 NLRB No. 131 1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD checkoff authorization that the unit employees signed before the strike states in pertinent part: [from any wages earned or to be earned by me as your employee, my periodic dues, initi- ation fee and assessment in such amounts as are now or hereinafter established by the Union Local of jurisdiction and become due to it, as my membership dues in said Union. Finally, the parties' 1983 contract provides that all employees must become and remain members of the Union not later than the 31st day following their date of employment as a condition precedent to their continued employment with the Employer. Based on Machinists Local 2045 (Eagle Signal), 268 NLRB 635 (1984), we agree with the judge that the language in the Union's dues-checkoff au- thorization contained the critical reference "as my membership dues in said Union" and constituted a quid pro quo for union membership and that, there- fore, the 30 employees effectively revoked their dues-checkoff authorizations when they resigned from the Union. Six of these employees, however, did not resign their memberships until after 1 De- cember. Because the Amalgamated Transit Union's con- stitution requires members to pay dues from the first of the month and these six were still union members with outstanding dues-checkoff authoriza- tions on 1 December, the obligation to pay the De- cember dues through the checkoff mechanism had attached before they resigned. Accordingly, we find that Local 1225 did not violate the Act by at- tempting to collect the December dues from Grey- hound for these employees. Regarding the remaining 24 employees, we find based on the above that they had effectively re- voked their dues-checkoff authorizations by 1 De- cember. It is also clear that, based on the union-se- curity clause provision in the 1983 contract, these individuals immediately became liable to pay dues when the successor agreement was ratified on 19 December.6 Local 1225 argues that the 24 employ- ees should pay union dues for that entire month be- cause its constitution does not prorate dues and the new contract became effective before 20 Decem- ber. It is well established, however, that any dues obligation under a union-security clause begins to accrue from the date of the contract's ratification and not from the date to which the contract was ' Compare Business Machine Technicians Local 1937 (NCR Corp), 235 NLRB 666 (1978), in which those employees who had resigned their memberships during a strike were not required under the union-security made retroactive.7 Thus, the 24 employees who re- signed from Local 1225 before December only had to pay dues from 19 December, the date the con- tract was ratified, until the end of that month. We therefore conclude that Local 1225 violated Sec- tion 8(b)(1)(A) and (2) of the Act when it attempt- ed to collect these employees' allegedly owed dues for the first 18 days of December 1983 when no union-security clause was in effect. AMENDED CONCLUSIONS OF LAW Substitute the following for the judge's Conclu- sion of Law 5. "5. Respondent Local 1225 attempted to collect dues for the following listed individuals both from the individuals themselves and from the Charging Party Employer at a time when those individuals were' not obligated to pay dues pursuant to an ex- isting union-security clause or pursuant to valid dues-checkoff authorizations thereby violating Sec- tion 8(b)(l)(A) and (2) of the Act: Tom Beesler Roberta Black Kevin Brown Clarence Burnes Courtney Carlson Ken Chernock Alfredo Cicardini Dawn Cook Allen Dauphine Danny Day Carolyn Denard Boyd Dillon Miguel Garcia Joseph Heck Janet Hisel Marlin, Kleinert Richard Longstreth Henry Miller James Mosher Robert Roberts James Sheppard Steven Swope' Julius Veitenheimer Charles Wood" ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that A. Respondent Amalgamated Transit Union Local Division No. 1222, AFL-CIO,,CLC, Los Angeles, California, its officers, agents, and repre- sentatives, shall take the action set forth in the Order, except that the attached Appendix A is sub- stituted for that of the administrative law judge. B. Respondent Amalgamated Transit Union Local Division No. 1225, AFL-CIO, CLC, San Francisco, California, its officers, agents, and repre- sentatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(c). "(c) Demanding that the Employer make dues payments on behalf of employees who had resigned clause to pay dues until the 60-day grace period set out in the new con- See, e g , Cleveland Typographical Union Local 53 (Plain Dealer Pub- tract had elapsed lashing), 225 NLRB 1281 (1976) TRANSIT UNION LOCAL 1225 (GREYHOUND LINES) their union memberships before December 1983 for the portion of that month when no union-security clause was in effect." 2. Substitute the following for paragraph 2(b). "(b) Notify the Employer that it no longer seeks dues payments during the period from 1 December to 18 December 1983 for the following individuals and notify each individual in writing that this has been done. If dues have been paid for this portion of December 1983 by these individuals, dues will be returned, with interest, as provided for in the remedy section of the judge's decision. Tom Beesler Roberta Black Kevin Brown Clarence Burnes Courtney Carlson Ken Chernock Alfredo Cicardini Dawn Cook Allen Dauphine Danny Day Carolyn Denard Boyd Dillon Miguel Garcia Joseph Heck Janet Hisel Marlin Kleinert Richard Longstreth Henry Miller James Mosher Robert Roberts James Sheppard Steven Swope Julius Veitenheimer Charles Wood" 3. Substitute the attached Appendix B for that of the administrative law judge. APPENDIX A NOTICE To 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT take any adverse action against our members or former members because they sup- ported Greyhound Lines, Inc. during the 1983 strike in violation of the amnesty agreement with Greyhound Lines, Inc. WE WILL NOT in any like or related manner re- strain or coerce employees of Greyhound Lines, Inc., in the exercise of the rights guaranteed them by Section 7 of the Act, except to the extent that 1053 such- rights, maybe, affected by a lawful agreement requiring membership in a labor organization as a condition of employment. WE WILL cancel and remove from our files any reference to the adverse actions taken against the following employees because of their activities in supporting Greyhound Lines, Inc. during the 1983 strike in violation of our amnesty agreement with Greyhound Lines, Inc., including internal union charges, hearings, fines, and expulsions. H. M. Anitablian Gilbert Amis Hussein Ayache Demitrius Baptiste Leon Bradley E. Brook La Juan Butler Kenneth Cook Lloyd De Loatch Randolph Dickerson Arnold Fehling Anthony Festa Netis Friday Robert Harris John Johnson Julius King David Lewis Wesley Marshall Louis Million Gary Mitchell W. Neff Emma Norton Daniel Owen Ray Oviatt Georgse Palcacios John Patmore Leroy Penson Ralph Ryder Richard Shields Ed Sumner Rex Walsh David Weigle T.C. Williams WE WILL notify each of the above -listed individ- uals in writing that their fines and expulsions have been canceled and all records of any adverse ac- tions against them have been removed from our files and that such action will not be used against them in any way. AMALGAMATED TRANSIT UNION LOCAL DIVISION No. 1222, AFL- CIO, CLC APPENDIX B NOTICE To 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., Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection 1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To choose not to engage in any of these 'Tom Beesler protected concerted activities. Roberta Black WE WILL NOT take any adverse action against our members or former members because they sup- ported Greyhound Lines, Inc. during the 1983 strike in violation of the amnesty agreement with Greyhound Lines, Inc. WE WILL NOT demand that Greyhound Lines, Inc. make dues payments on behalf of employees who resigned their union memberships before De- cember 1983 for the portion of that month when no union-security clause was in effect. WE WILL NOT in any like or related manner re- strain or coerce employees of Greyhound Lines, Inc., in the exercise of the rights guaranteed them by Section 7 of the Act, except to the extent that such rights may be affected by a lawful agreement requiring membership in a labor organization as a condition of employment. WE WILL cancel and remove from our files any reference to the adverse actions taken against the following employees because of their activities in supporting Greyhound Lines, Inc. during the 1983 strike in violation of our amnesty agreement with Greyhound Lines, Inc., including internal union charges, hearings, fines, and expulsions. Gilbert Altamirano Joseph Glon James Ashmore William Hayes Frank" Bowman Joseph Heck Kevin Brown Marlin Kleinert Clarence Burnes Richard Longstreth, Courtney Carlson Judy Meixner Ken Chernock Henry Miller Alfredo Cicardini James Mosher Dawn Cook Robert Roberts Edward Crabtree James Sheppard Allen Dauphine Ronald Stulir Carolyn Denard Steven Swope Boyd Dillon Charles Wood Marilyn Gallagher Dwight Ynez Miguel Garcia Stanley Zarconi WE WILL notify each of the above-listed individ- uals in writing that their fines and expulsions have been canceled and all records of any adverse ac- tions against them have been removed from our- files and that such action will not be used against them in any way. WE WILL notify each of the following individ- uals and Greyhound Lines, Inc. that we will make no further attempt to collect membership dues from these individuals during the period from 1 December to 18 December 1983 and, if any such, dues have been collected, we will return such dues with appropriate interest: Kevin Brown Clarence Burnes Courtney Carlson Ken Chernock Alfredo Cicardini Dawn Cook Allen Dauphine Danny Day Carolyn Denard Boyd Dillon Miguel Garcia Joseph Heck Janet Hisel Marlin Kleinert Richard Longstreth Henry Miller James Mosher Robert Roberts James Sheppard Steven Swope Julius Veitenheimer Charles Wood AMALGAMATED TRANSIT UNION LOCAL DIVISION No. 1225, AFL- CIO, CLC Kenneth D. Meadows, Esq., for the General Counsel. James Cushing-Murray, Esq., of Los Angeles, California, for Respondent Local 1222. Peter B. Nussbaum, Esq. and, with him on brief, Victoria Chin, Esq. (Neyhart, Anderson, Nussbaum, Reilly & Freitas), of San Francisco, California, for Respondents. Travis G. Clemens, Esq., of Phoenix, Arizona, for Charg- ing Party Greyhound. DECISION STATEMENT OF THE CASE CLIFFORD H. ANDERSON, Administrative Law Judge. I heard this consolidated matter in trial on December 11- 12, 1984, in Los Angeles, California, and on January 23, 1985, in San Francisco, California. The case arose as fol- lows. The following individuals filed timely charges against Amalgamated Transit Union Local Division No. 1225, AFL-CIO, CLC (Respondent Local 1225), which cases ' were subsequently renumbered' by the General Counsel as appears following their names: Joseph James Heck III, Case 28-CB-2297; Charles H. Wood, Case 28- CB-2300; Henry S. Miller, Case 28-CB-2301; Dawn Rene Cook, Case 28-CB-2302; Boyd DeWayne Dillon, Case 28-CB-2303; James R. Mosher, Case 28-CB-2304; Courtney Roscoe Carlson, Case 28-CB-2305; Allen Dwight Dauphine, Case 28-CB-2306; Richard Drury Longstreth Jr., Case 28-CB-2307; and Steven Edward Swope, Case 28-CB-2313. Greyhound Lines, Inc. (Grey- hound) filed timely charges against Amalgamated Transit Union Local Division No. 1225, AFL-CIO, CLC and Amalgamated Transit Union Local Division No. 1222, AFL-CIO, CLC (Respondent Local 1222 and, with Re- spondent, Local 1225, Respondents) in Case 28-CB-2244. These cases were consolidated in various complaints with other cases involving associated locals of the Amal- gamated Transit Union throughout the' United States. Both before the opening of the hearing, at the trial, 'and after the trial numerous allegations were settled by the parties with the -approval of the General Counsel before the hearing opened and with my approval after the open- ing of the hearing. As a result of these settlements nu- merous Respondents not here named have been deleted TRANSIT UNION LOCAL 1225 (GREYHOUND LINES) from the litigation and the allegations against the remain- ing two Respondents have been greatly narrowed and simplifed The remaining elements of the consolidated complaints in this matter are of two types. The first cate- gory of allegation contends that Respondents took ad- verse action against certain individuals because of their activities in defiance of Respondents' strike against Grey- hound and in so doing violated a strike settlement agree- ment between Respondents and Greyhound thereby vio- lating Section 8(b)(1)(A) and (3) of the Act. The second category of allegations contends that Respondent Local 1225 improperly attempted to obtain dues for certain Greyhound employees at a time when it was not entitled to do so thereby violating Section 8(b)(1)(A) and (2) of the Act. Respondents denied the allegations and assert certain affirmative defenses as discussed below. On the entire record, ' including excellent briefs from the General Counsel and Respondents, and from my ob- servations of the witnesses and their demeanor, I make the following2 FINDINGS OF FACT All parties were given full opportunity to participate at the hearing, to introduce relevant evidence , to call, ex- amine, and cross-examine witnesses , to argue orally, and to file posthearing briefs. 1. JURISDICTION Greyhound is a Delaware corporation engaged in the business of interstate and intrastate transportation of pas- sengers, freight, and commodities. Greyhound had its main office in Phoenix, Arizona, and maintains other fa- cilities in various States of the United States, including the State of California at locations including San Francis- co and Los Angeles. During the-past year, which period is representative of its annual operations generally, Grey- hound in the course and conduct of its business oper- ations derived gross revenues in excess of $50,000 from the interstate transportation of passengers, freight, and commodities. Greyhound is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATIONS Respondents, and each of them, have been and are now labor organizations within the meaning of Section 2(5) of the Act. III. UNFAIR LABOR PRACTICE ALLEGATIONS A. The Deferral Issue Respondents included in their answers as affirmative defenses the proposition that the underlying unfair labor I The parties' joint motion to accept posthearing stipulations is granted and the evidence and stipulation are received into the record. 2 The parties offered into evidence stipulations of fact, unopposed amendments to pleadings, stipulated exhibits, and other joint motions. These efforts substantially reduced the issues in dispute and the factual contentions regarding the remaining issues Where not specifically noted, these findings are based on the amended pleadings, various stipulations of the parties, and uncontested documentary and testimonial evidence 1055 practice allegations be deferred to the grievance and ar- bitration procedures contained in the collective -bargain- ing agreement between the parties. The parties argued this issue in pretrial motions, at the hearing, and in post- hearing briefs. The Board has recently stated: "Whether deferral is appropriate is a threshold question which must be decided in the negative before the merits of the unfair labor practice allegations can be considered." L. E. Meyers Co„ 270 NLRB 1010 fn. 2 (1984). Accordingly, it is appropriate to address the deferral question initially. The Board in United Technologies Corp., 268 NLRB 557 (1984), resurrected the deferral principles of Collyer Insulated Wire, 192 NLRB 837 (1971),' and National Radio Co., 198 NLRB 527 (1972), and their progeny. The Board will now, in appropriate cases, defer allega- tions of violations of Section 8(b)(1)(A) and (3) of the Act to the grievance and arbitration provisions of the parties' collective-bargaining agreement . The parties do not dispute the current state of Board law with respect to deferral, but rather are in disagreement about whether the disputes at issue are susceptible to resolution' under grievance and arbitration clause of the current contract. Given the numerous issues and the unusual and rather complex state of affairs with respect to the collective- bargaining agreement, a somewhat lengthy analysis of the deferral issues is necessary. 1'. Events surrounding the entrance into the collective-bargaining agreement Greyhound and the Amalgamated Council of Grey- hound Local Unions (the Council), of which Repondents are constituent local unions, have had a longstanding col- lective-bargaining history concerning a nationwide unit of Greyhound employees. The current collective-bar- gaining agreement, effective by its terms from November 1, 1983 , to October 31, 1986, was entered into following a strike in late 1983. The collective-bargaining agreement provides in article A-2, a grievance procedure culminat- ing in binding arbitration. Article A-2 has the following subprovisions: (x) COMPANY AGGRIEVED-In the event any grievance, dispute or difference originates in which the Company regards itself as the aggrieved party, the Company shall take up such matters within twenty (20) calendar days from the occur- rence on which such grievance is based with the Local President or Business Agent in the Local Union in which such grievance originates Failing satisfactory disposition of such grievance within ten (10) days from the date of such submission, the matter may be taken up by the duly designated Company representative within the next ten (10) days, with the Counsel of the Union. In the event no satisfactory adjustment is reached within ten (10) days after such submission, the issue may be submit- ted for a determination to arbitration in the manner herein above provided for not later than thirty (30) calendar days thereafter. (y) In each instance where time limits are set forth in the grievance and arbitration procedure and 1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the days referred to are not referred to as calendar days, it is understood that said time limits are exclu- sive of Saturday, Sunday and Holidays. 1. In each instance where time limits are pro- vided in the grievance and arbitration proce- dures, an additional ten (10) days will be granted if requested in writing. An extension in excess of ten (10) days will require mutual agreement. Except issues involving contract interpretations will not be extended more than thirty (30) days without the approval of the Contract Interpreta- tions's Committee. 2. If either party fails to meet the time limits specified in this Article, they will forfeit the case; it -being understood such forfeiture does not decide the merits nor establish a precedent. Along with the new contract, the parties simultaneous- ly agreed to and later ratified a side letter (amnesty agreement), which states in part as follows: (2) Except for acts amounting to criminal miscon- duct, it is the intent of the Company and Union to recognize and apply the concept of reciprocal am- nesty with respect to acts and conduct of all em- ployees, supervisors and agents of the Company and acts and conduct of all local union's officers, Coun- cil officers, and International representatives of Al- magamated Transit Union, leading up to or during the work stoppage beginning November 2, 1983. The parties will meet promptly to carry out this intent with respect to all matters. If they are unable to-agree that issues such as denial of benefits, disci- pline or discharge resulted from acts amounting to criminal misconduct, the Union has the right to timely appeal any such dispute to arbitration. Pursuant to our agreement, all federal or state civil actions and charges of unfair labor practices by the Company against the Union 'or its officers-or agents shall be withdrawn or dismissed with preju- dice. All federal or state civil actions and charges of unfair labor practices by the Union or its officers or agent officers or agents against the Company or its agents, shall be withdrawn or dismissed with preju- dice. It is further agreed that there shall be no retalia- tion of any kind by the Union, its officers and agents against any employee for their lawful efforts to maintain Company operations during the strike. Following the ratification of the contract and the an- mesty agreement, communications between the Union and Greyhound commenced with respect to the 258 indi- viduals who had been terminated during the strike for al- leged strike misconduct. Of those individuals, 124 were granted immediate amnesty by Greyhound and returned to work. No agreement was reached with respect to the remaining 134. These 134 individuals were processed through the contractual grievance and arbitration proce- dure. At various steps in the arbitral process, but in each case short of an arbitrator's decision, the grievances of 110 of those individuals were settled by agreement be- tween Greyhound and the Union. The remaining 22 dis- putes were arbitrated with 21 individuals returning to work and 1 termination sustained by the arbitrator. Those nationwide figures include 49 individuals in Re- spondent Local 1225's jurisdiction who were terminated for alleged strike misconduct. Of the 49, 17 were; granted immediate amnesty by Greyhound. Of the remaining 32, all cases were settled by Greyhound and Respondent Local 1225 save for 4, which went to arbitration. Of the four, three arbitrations resulted in reinstatement. One de- cision has yet to issue. With respect to Local 1222, 50 individuals were terminated by,Greyhound for alleged strike misconduct, 25 were immediately reinstated, pursu- ant to the amnesty agreement. The remaining 25 were re- instated during the contractual grievance process al- though there is no record evidence of the specific means of their reinstatement. In certain cases charges were filed with the Regional Offices of the National Labor Relations Board alleging that Greyhound violated Section 8(a)(1) and (3), of the Act by discharging strikers. At least some of these charges have been deferred by the General Counsel to the grievance and arbitration procedure. 2. Arguments of the parties a. Respondent's argument., the amnesty agreement is invalid and unenforceable Respondents argue that the amnesty agreement is not enforceable against them because Greyhound fraudulent- ly induced the Union to enter into it. In 'the alternative Respondents argue that the agreement is not enforceable because Greyhound materially breached its terms.3 The force of Respondents' argument is that Greyhound's agents in negotiating the anmesty agreement gave assur- ances to the Union that the'amnesty agreement would be applied with speed and generosity toward those fired during the strike. Rather, Respondents argue, both Grey- hound agent's 'initial inducing remarks and the terms of the amnesty agreement itself were not followed and were, rather, ignored. The evidence offered in support of this proposition is the evidence, noted supra, that many dischargees did not obtain amnesty under the agreement. Hence, Respondents argue,, the terms of the agreement were fraudulently induced, were materially breached, and are, therefore, without force and effect. The factual question for resolution here is whether the stipulated statistics regarding handling of the employees terminated during the strike for alleged strike misconduct are in some manner inconsistent with the terms of the amnesty agreement and Greyhound's remark concerning 3 Respondents' arguments that the amnesty agreement is without force and effect appear to be inconsistent with their argument that the unfair labor practice allegations should be deferred to the amnesty agreement The arguments here discussed, however, were made by Respondents in an attempt to avoid unfair labor practice liability that might result should the amnesty agreement be held valid Although apparently intended to be considered only if the merits of the unfair labor practice allegations are reached, because the arguments challenge the validity of the amnesty agreement, they must also be considered at this threshold stage in deter- mining if the collective -bargaining agreement and the amnesty agreement will support Respondents' deferral motion. TRANSIT UNION LOCAL 1225 (GREYHOUND LINES) its implementation. Contrary to Respondents' arguments and their attempts to characterize the statistics, I do not find that the continuing, indeed lengthy, disputes with respect to certain of the individuals terminated during the strike for alleged strike misconduct shows Grey- hound's conduct to be in material breach of the terms of the amnesty agreement. Nor do I find Greyhound's agent's remarks, which were consistent with the agree- ment, rise to the level of fraud in the inducement voiding the agreement. Simply put, a significant number of dis- charged employees were immediately reinstated pursuant to Greyhound's interpretation of the amnesty agreement and there is no reason to believe the remaining individ- uals were not similarly involved in good-faith disputes of fact. Although it is true that a significant number of em- ployees were not reinstated and that the great bulk of those employees eventually were reinstated after resort to the grievance and arbitration procedures, I do not find those facts standing alone are sufficient to imply material breach or bad faith on the part of Greyhound in entering into the settlement agreement even considering the opti- mistic remarks its agents made to Respondents' officials concerning the advantages to the Union of entering into such an agreement. Given that the great bulk of employ- ees not immediately reinstated by Greyhound were rein- stated by settlement rather than arbitration, Respondents' attack on Greyhound conduct is simply insufficient to sustain the substantial burden a party bears to prove either fraudulent inducement or material breach of a con- tract.4 b. The General Counsel's argument: there is insufficient harmony of interest between the employees and Greyhound to require employee claims to be litigated by Greyhound The General Counsel argues, particularly in regard to the charges filed by the individuals here, that there is in- sufficient evidence to find that Greyhound, an employer with the institutional interest of an employer as opposed to the interests of employees, would "represent and be an advocate for the interests of the [employees] in the prosecution of a grievance against their collective bar- gaining representative." Citing Machinists (Sunbeam Corp.), 219 NLRB 1019 (1975); Typographical Union Local 650 (Copley Press), 221 NLRB 1048 (1975). The General Counsel also advances the unchallenged testimo- ny of Greyhound Vice President Green that Greyhound did not feel itself to be the aggrieved party or to be in a position to file grievances on behalf of employees as a result of Respondents' actions against them.5 The Gener- al Counsel notes on brief: While a Board majority in United Technologies held that section 8(b)(1)(A) charges are once again defer- 4 During the negotiations, including the negotiation of the ammesty agreement, the parties were represented by experienced labor negotiators, labor counsel, and other industrial relations staff I find Respondents were or should have been well aware of the potential problems and ims- understandings the amnesty agreement could and later did entail 5 There was unchallenged testimony that employees may not independ- ently file grievances against the Union under the terms of the collective- bargaining agreement 1057 rable, neither the decision or its progeny have yet afforded any clues as to the criteria the Board will use in assessing the efficacy of deferring charges al- leging unfair labor practices by labor organizations, particularly, unfair labor practice charges filed against their collective-bargaining representative by individual charging parties. Considering the record as a whole including the evi- dence of Greyhound's motives for entering into the am- nesty agreement, the terms of the amnesty agreement itself, and the obvious interest of an employer in protect- ing its employees who chose to work during a strike from subsequent adverse actions by the striking labor or- ganization, I find that Greyhound possesses a sufficient harmony of interest in this matter to properly and ade- quately represent employees, including the individual charging parties, in the grievance and arbitration proce- dure. I find Greyhound's conduct throughout this pro- ceeding, including its conduct during negotiations and immediately thereafter, demonstrates a strong interest in assuring that its employees are protected by the amnesty agreement and a motive, in utilizing the terms of the am- nesty agreement negotiated by it, to protect employees Who supported it during the strike. This being so I de- cline to reject the deferral of these disputes on the ground of lack of sufficient similarity of interests be- tween Greyhound and employees. c. The General Counsel's argument: Respondent cannot waive the time limits under the contract Normally, when a case is deferred to the terms of the contract, the time limits for filing the' grievance have passed. This difficulty is dealt with by requiring that the party seeking deferral waive any right to assertion any defense of untimeliness in processing the grievance. The terms of the instant contract have time limits that cannot now be met by Greyhound, absent waiver by the other side. These time limits exist both at the local level- which limits can be waived by Respondents, and at the national level when waiver must be by the Council- which is not a party to this proceeding. The General Counsel argues that Respondents cannot waive the national level time limits. Further, the General Counsel argues that, given the expressed opposition of the Council to arbitration of the issues of the instant case, 6 it would be unwilling to waive the time limits for filing grievances under the grievance and arbitration lan- guage of the contract. There is no dispute that Respond- ents may not independently waive these national time limits nor have they directly or impliedly represented that the time limits under the contract will be waived for this dispute by the Council. 6 The General Counsel established that as of August 31, 1984, the Council took the following position It is the Council's position that the so-called "amnesty agreement" of November 17, 1983 is a strike settlement agreement separate and apart from the collective-bargaining agreement It is therefore not subject to the grievance-arbitration procedures of the labor agree- ment. Q 1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondents on brief argue that "Greyhound has the absolute right, regardless of the Council' s unwillingness, to take contract violation matters to arbitration." This ar- gument however does not address the strict provisions of contract article A-2 (y) that provide time limits, limited waiver of time limits, and forfeiture of the cases based on the failure to meet time limits specified in the article. The ability to waive time limits provisions of applicable grievance-arbitration procedures has long been a predi- cate to any Board deferral. Given the record evidence of the Council's recalcitrances regarding the applicability of the grievance-arbitration clause to disputes arising under the amnesty clause, I find that Respondents have not met their burden of showing that, despite, their individual willingness, the timeliness provisions of the grievance-ar- bitration clause may be viewed as either waived or im- pliedly waived. Accordingly, I find the grievance and ar- bitration provisions of the collective-bargaining agree- ment may not be properly invoked by Respondents here to support a deferral of the charges. B. Allegations that Respondent's Adverse Action Against Employees Who Crossed Picket Lines Violated Section 8(b)(1)(A) Having determined that the merits of the retaliation al- legations are not appropriately deferred to the grievance and arbitration process and, in conjunction with that analysis, having determined that the amnesty agreement is valid, it is appropriate to deal with the substantive law concerning restrictions on labor organization rights under amnesty agreements. The General Counsel and Respondents cite and discuss the leading cases dealing with amnesty agreements, in the context of union internal discipline. The fountainhead case is Operating Engineers Local 39 (San Jose Hospital), 240 NLRB 1122 (1979).' The cases make it, clear that, where a labor organization waives its'rights to initiate in- ternal discipline against members for actions during a strike pursuant to an amnesty agreement with an employ- er, conduct in derogation of that amnesty agreement vio- lates Section 8(b)(1)(A) of the Act. Having found the in- stant amnesty agreement valid and applicable to Re- spondents, it follows that the admitted adverse actions taken by Respondents against Greyhound,employees vio- late Section 8(b)(1)(A) of the Act and I so find.8 7 See also Office Employees Local 129, 267 NLRB 1017 (1983), Hospital Workers Local 250 (Associated Hospitals), 254 NLRB 834 (1981), Hospital Workers Local 250 (Damerson Hospital), 248 NLRB 1390 (1980), Retail Clerks Local 1364 (Food Employers), 240 NLRB 1127 (1979); food & Commercial Workers Local 1439 (Rosauer's Supermarkets), 275 NLRB 30 (1985) , 6 An important distinction exists in the substantive law between union actions against members and actions against nonmembers in situations where no amnesty agreement applies The distinctions between member- ship, resigned membership, and nonmembership are not discussed be- cause, consistent with the cases cited supra, all employees covered by the amnesty agreement are protected against union discipline irrespective of their membership or nonmembership status Thus the amnesty agree- ment's protection for employees is at least as broad or broader than the alternative theories of the General Counsel concerning certain employees whose membership was in dispute for certain periods 'Because additional analysis would not enlarge the remedy afforded any employees who suf- fered adverse action, I shall not further address these "moveover" theo- ries There was no dispute regarding the actions taken by Respondent Locals against various employees. That con- duct, found to be a violation of Section 8(b)(1)(A) above, is as follows: Respondent Local 1222 processed interunion charges, convened trial board hearings, conducted trials, ' issued fines, and expelled,from membership the following indi- viduals:9 H. M. Anitablian Gilbert Amis Hussein Ayache Demitrius Baptiste Leon Bradley E. Brook La Juan Butler Kenneth Cook Lloyd De Loatch Randolph Dickerson Arnold Fehling Anthony Festa Netis Friday Robert Harris John Johnson Julius King David Lewis Wesley Marshall Louis Million Gary Mitchell W. Neff Emma Norton Daniel Owen Ray Oviatt Georgse Palcacios John Patmore Leroy Penson Ralph Ryder Richard Shields Ed Sumner Rex Walsh David Weigle T.C. Williams Respondent 1225 lodged, accepted, and processed in- terunion charges against the below -named individuals be- cause they crossed the picket line, and imposed union fines: 1 0 Gilbert Altamirano James Ashmore Frank Bowman Kevin Brown -Clarence Burnes Courtney Carlson Ken Chernock Alfredo Cicardini Don Cook Edward Crabtree Allen Dauphine Carolyn Denard Boyd Dillon Marilyn Gallagher Miguel Garcia Raymond Ghiorso Joseph Glon William Hayes Joseph Heck Marilyn Kleinert Richard Longstreth Judy Meixner Henry Miller James Mosher Robert Roberts James Shepherd Ronald Stulir Stephen Swope Charles Wood Dwight Ynez Stanley Zarconi 9 Allegations regarding Local 1222's actions against employees for their reporting to Greyhound about the conduct of other employees will be discussed infra 'o Danny Day had interunion charges brought against him but the charges were dismissed after a hearing Inasmuch as the General Counsel bears the burden of proof on all aspects of its case, I find no violation regarding Day Machinists Local 1374 (Columbia Machine), 274 NLRB 123 fn. 11 (1985). The complaint was substantially amended during the hearing to reflect specific individuals rather than classes of individuals who were treated adversely by Respondents. Certain of the charges were resolved by settlements, see, e.g., J Exh. 3. It is my intention here to list all individuals who were treated adversely by Respondents for their con- duct during the strike with the sole exception of the disputes with respect to King and Gardner that are discussed infra. TRANSIT; UNION LOCAL 1225;,(G,IOUND LINES) The General Counsel additionally alleges the above- described conduct of Respondents violates Section 8(b)(3) of the Act. The cases cited in support of the 8(b)(1)(A) violation do not address Section 8(b)(3) of the Act nor has any party cited a Board case finding con- duct in derogation of an amnesty agreement to violate Section 8(b)(3) of the Act. Without reaching the General Counsel's arguments concerning repudiation of an amnes- ty agreement as a form of reneging on a negotiated agreement and hence a violation of Section 8(b)(3), I find it inappropriate to find a violation of Section 8(b)(3) of the Act on the facts of this case. As counsel for the Gen- eral Counsel noted in his brief, "Greyhound did not con- sider itself to be an `aggreived party as regards the Re- spondent Unions' invocation of their internal procedures in order to retaliate against those who do not support the' 1983 strike [citation to transcript omitted]." Without sug- gesting that union conduct inconsistent with an amnesty agreement cannot rise to the level of repudiative conduct violating Section 8(b)(3) of the Act, I find that the ac- tions alleged here, the actions of two local unions repre- senting but a small part of a nationwide unit, does not rise to the level of 8(b)(3) conduct when those locals remain willing to litigate their conduct under the griev- ance and arbitration clause and when Greyhound's offi- cials themselves indicated they did not regard Respond- ents' actions as directly injurious to Greyhound. Accord- ingly, on the unusual facts of this case, I decline to find a violation of Section 8(b)(3) of the Act. C. Respondent 1222s Right to Discipline Members King and Gardner On May 18, 1984, employee Dan Gardner filled out and submitted to Greyhound on its "incident report form" an allegation that he was harassed by coworker Robert Clark. Acting at least in part on Gardner's writ- ten report, Clark was suspended by Greyhound for 7 days. Clark's suspension was grieved by, Local 1222. Later in July 1984 internal charges were brought against Gardner for "spreading dissension among members of the Local by making statements to Greyhound which re- sulted in Clark's suspension." Gardner was notified that the charges against him would be tried in October 1984. At that trial Gardner was fined $465 and expelled from Respondent Local 1222.11 Employee Jules King submitted a written report to Greyhound in August 1984 alleging harassment from certain coworkers. As a result of the report Greyhound commenced adverse actions against one of the accused coemployees. In late September Local 1222 filed internal union charges against King based on his accusations against two fellow union members. At trial board ses- sions on October 30 and 31, 1984, proceedings were held involving King. King was both fined for crossing the picket line during the strike and was expelled for giving written statements to management. i 2 i t Respondent Local 1222's trial board minutes states, It is the Trial Board unanimous decision in the case of D Gardner, that he is guilty of the non-strike related acts against Brother Clark and he is to be fined $465 and expelled from Local Union No 1222. ' z The trial board minutes as to King states 1059 ^" hoard taw with respect to the propriety of union disci- pline against members who report fellow members to management is undergoing steady refinement. In Com- munications Workers Local 5795 (Western Electric), 192 NLRB 556 (1971), the Board considered a labor organi- zation's fine of an employee in the following circum- stances. The employee was aware of the employer's rule prohibiting alcoholic beverages on company property. She discovered a liquor bottle in the drawer of a ma- chine on which she was working and, not wanting to be blamed for the possession of the bottle, was called into management's office and asked to whom the bottle be- longed. The employee responded with the name of an- other employee and suggestions for witnesses manage- ment might contact. As a result of this conduct the em- ployee was fined by her union for "'injury to a fellow union member." The administrative law judge with Board approval undertook the following analysis, 192 NLRB at 557: The complaint does not allege that the Union had no legitimate interest in enforcing a rule which pro- hibited injury to fellow members nor does there seem to be much room to argue such a proposition. Assuming the Union's rule simply prohibited a member from informing upon another member, it would appear that such a rule would represent a le- gitimate union interest in promoting harmony within the ranks. However where such a rule was contrary to a company's work rule, .e.g., where the informer's work duties required him to report in- fractions of work rules (as, where the informant has an inspector's job or a guard's duties), such union rule would not be proper inasmuch as its applica- tion and enforcement would result in a dereliction of duties by the informer and, consequently, lead to his discharge, thus affecting his employment status. Here, however, it is not suggested that [the employ- ee's] work dues required her to report the presence of [another 'employee's] bottle. The Union's fine, therefore, could not affect her employment status. In Chemical Workers Local 604 (Essex International), 233 NLRB 1239 (1977), the Board found improper a union fine of a member who had reported to manage- ment that fellow members had left their work stations without first obtaining relief in violation of company rules. The Board adopted the judge's analysis that, be- cause the employee was a work leader who had been specifically instructed by management that it was his re- sponsibility to report on employees , he was obligated to do so else he lose his employment. The judge found be- cause the employee's job was in jeopardy if he obeyed the union's command not to report to management on the behavior of his fellow union members, the fine vio- lated Section 8(b)(1)(A) of the Act. A similar result was It was Trial Board's unanimous decision in the case of Jules King, that he is guilty of crossing our legal picket line and he is to be fined $1250. It was the Trial Board's unanimous decision in the case of Jules King, that he is guilty of the non-strike related acts against Brother Kennedy and he is to be expelled from Local Union No. 1222 1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reached in Carpenters (Hopeman Bros.), 272 NLRB 584 (1984). In that case the fined individual, while a bargain- ing unit member and member of the union, had addition- al duties as a leadman , one of which was to make sure that other employees were working safely and one of whose responsibilities was to report to the, company any violation of the company's rules of conduct. The em- ployee was threatened by a fellow union member with a knife and reported him as in violation of the employer's standard rules of conduct that included . as an offense "disorderly conduct on company property, including, but not limited to fighting or agitation " and bemg in posses- sion of weapons on company property. The judge found that the employee, as a leadman, had a duty to report the violation and that, because employees' job duties re- quired reporting of such violations, the fine by the union for making such a report violated Section 8(b)(1)(A). The Board also holds that it is improper for a union to fine a member for testifying against a fellow member in an arbitration proceeding in view of the fact that arbitra- tion and grievance machinery is at the very heart of the American system of industrial, self-government . See, e.g., Teamsters Local 557 (Liberty Transfer), 218 NLRB 1117 (1975). In Oil Workers Local 7-103 (Dap, Inc.), 269 NLRB 129 (1984), the Board considered a union fine of a member who reported negligent machine operation by a fellow member to management and who, later, when asked, willingly signed a statement describing the fellow member's negligent operation (1) knowing of a company rule against willful destruction of company property and (2) further being aware that the negligent employee was susceptible to discharge as a result of his report. The judge, with Board approval, concluded that the employ- ee, by consenting to the company's request for a signed statement, was participating in the grievance machinery even though a grievance had not yet' but likely would be filed. The judge, with Board approval, thus extended the protection afforded those involved in the grievance proc- ess to a pregrievance statement given by an employee to management in fair contemplation that it would be used in the grievance process. The judge further noted that the fined employee was a crew chief, although not a-su- pervisor. He found the employee "had a duty to keep the line working in proper order" and whose duties "would include reporting to management the cause and reason for [the event]." In a concurring footnote Member Dennis expressed the opinion "a union rule that author- izes the fining of members for reporting a fellow employ- ee's infraction of a proper plant rule does not reflect a `legitimate union interest '- and is contrary to national labor policy, which favors the observance of valid rules governing the work place." Id. Thus, Member Dennis would overrule Communications Workers Local 5795 (Western Electric), 192 NLRB 556 (1971). Chairman Dotson and Member Hunter, in the same footnote, found it unnecessary,-to pass on the validity of Western Electric. The cited positions of the same three-member panel were preserved unaltered in Hopeman Bros., supra at fn. 1. The General Counsel in the instant case argues that, as drivers, the fined employees were obligated to report rule violations to the Company and that the conduct they observed was clearly in violation of company rules. Thus, the General Counsel seeks to invoke the protec- tions of Essex and Hopeman Bros. Respondents argue that the Western Electric case is ,controlling because, as here, the employees involved volunteered information that re- sulted in the employer disciplining the employees named by them. The General Counsel further argues that the fined employees should be held to have been participat- ing in the grievance machinery because it was reasonably probable that the reported infractions would lead to a grievance. Opposing this characterization, Respondents emphasize that the reporting was initiated by the fined employees and that there was no reasonable contempla- tion at that time that the grievance machinery would be ultimately invoked. Considering the cited cases and the undisputed evi- dence with respect to the fines, I find that the fines in the instant case are controlled by the Board decision in Communications Workers Local 5795 (Western Electric), supra. The employees involved here, unlike the employ- ees in the cited cases who had lead positions with special responsibilities to report on other employees for which responsibilities they were held to account, were line drivers with no more than general responsibility to report company infractions as required of all driver em- ployees.13 So, too, unlike the earlier cited cases, manage- ment did not seek the evidence submitted by the employ- ees in order to initiate or substantiate discipline against offending employees. Rather, in each case here the fined union member employees initiated in an entirely volun- tary way reports to management . These reports were the first information management had of the events in ques- tion. Accordingly, I do not find the fines violative of Section 8(b)(1)(A). The General Counsel points to Member Dennis' position that Western Electric should be overruled. The General Counsel's arguments, however, argue against the - case. As part of the very same foot- notes cited above, the remaining two members of the Board panel in Dap and Hopeman ' Bros., Chairman Dotson and Member Hunter , specifically declined to overrule Western Electric. Hence, Western Electric's force as Board law remains and as Board law it is binding on administrative law judges. Judges are bound to apply ex- isting law without anticipating its subsequent reversal. The General Counsel should take this latter argument di- rectly to the Board. The General Counsel also argues that the fining and expulsion of Gardner and King are violative of the Act even if fines for initiating adverse reports to management about fellow union members are not illegal . The theory of the General Counsel here is that Gardner and King were fined and expelled not for their conduct in submit- ting reports to management, but rather because of their conduct during the strike. Thus, the General Counsel points out that the incidents that were the subject of the employees' written reports to management involved har- assment of Gardner and King by employees who had supported the strike IS Driver obligation to report accidents, due to the needs of Grey- hound to avoid liability and to comply with traffic laws, are a different matter not here relevant TRANSIT UNION LOCAL The General Counsel further notes that the trial board held on October 30 and 31, 1984, dealt with all the fines at issue and produced the essentially uniform result that each member was fined $1250 and expelled from Re- spondent Local 1222 With respect to Jules King, as quoted, supra, the trial board in separate paragraphs (1) fined him $1250 for crossing the Union's picket line and (2) expelled him because of his testimony against a fellow union member. Thus, all other employees received both fines and expulsion for activity for which King was only fined. Hence, it may be argued that the reason given for the expulsion was but pretext and King, like all others, was both fined and expelled in fact for his conduct in crossing the picket line. So, too, the General Counsel argues that, because Gardner had previously resigned and was thus immune from valid union fines for working during the strike, the $465 fine and expulsion he received were in fact ad- dressed to that conduct. The assertion that the fine was for testifying against a fellow union member was but a pretext designed to shelter the true motivation of the Union, i.e., King's activities in crossing the picket line and in supporting management during the strike. Although the factual issues are close, I find the fines were assessed for the reasons asserted, First, Respond- ents were not reluctant to clearly label their reasons for fining others. Further, the separate treatment, different amount of fine, and lack of any admissions by union agents regarding Gardner defeat the General Counsel's argument here. I find insufficient evidence to find that Gardner was fined and expelled for reasons other than his actions in reporting to management about a fellow union member, activities that I have found outside the proscriptions of Section 8(b)(1)(A) of the Act, supra. Ac- cordingly I find no violation regarding him. The issue is closer concerning King because of the fact that all the other individuals received both a fine and expulsion and King received only a fine for his activities in crossing the picket line with his explusion being represented as pun- ishment for his activities against a fellow union member. On this record, however, with the burden on the Gener- al Counsel to prove each element of his complaint and again relying on the unconcealed motivations of Re- spondent Local 1222 regarding others, I find the evi- dence insufficient to show that the fine was for reasons other than stated. This finding is buttressed by the fact that the Union has consistently maintained its policy of resisting member efforts to cooperate with management in supplying information, perceived harmful to other members, Greyhound has long been aware of such a union policy and has, at least in some cases, acquiesced in the rule and avoided pressing union' members to expose themselves to adverse action from Respondent Local 1222 for their cooperating with management against fellow union members. Accordingly, regarding King, I also find his expulsion was in fact because of his activities against a fellow union member and is without the prohibitions of Section 8(b)(1)(A) of the Act.14 14 This finding does not affect my previous finding that King was im- properly fined $1250 for crossing the picket line by Respondent Local 1225 (GREYHOUND LINES) 1061 D. Respondent 1225s Dues Collection Efforts The collective-bargaining agreement in effect before the strike15 as well as the new collective-bargaining agreement that was ratified on 19 December 1983, and is by its terms retroactive to 1 November 1983, contained standard union-security clause language obligating union membership after the 31st day of employment and also contains dues-checkoff provisions. Before the strike various employees, including the em- ployees in dispute here, signed and submitted checkoff authorization cards to Greyhound that assigned to Re- spondent Local 1225: [F]rom any wages earned or to be earned by me as your employee, my periodic dues, initiation fee and assessment in such amounts as are now or herein- after established by the Union Local of jurisdiction and become due to it, as my membership dues in said Union. I authorize and direct you to deduct and withhold such amounts from my pay and to remove the same to proper Union Local, This assignment, authorization and direction shall be irrevocable for a period of one year from the date hereof or until the termination of the collec- tive-bargaining agreement between the employer and the Union, whichever occurs sooner. I agree and direct that this assignment, authoriza- tion and direction shall automatically renew and shall be irrevocable for successive periods of one year each or, for the period of each succeeding ap- plicable collective-bargaining agreement between the employer and the union, whichever shall be shorter, unless written notice is given by me to the employer and the Local union Secretary/Treasurer by registered mail not later than 20 (twenty) days and not later than 10 (ten) days prior to the expira- tion of each period of I (one) year or each applica- ble collective-bargaining agreement between the employer and the Union, whichever occurs sooner. The constitution and general laws of the Amalgamated Transit Union, applicable to Respondent Local 1225 con- tain no provisions on resignation of union membership, but contain the following provision regarding dues: 21.9 Date of Enrollment. Monthly dues shall be charged on the books of the L.U. for each member from the first day of each month. Members joining the Union during the month will be entered as members and charged dues as follows: members joining up to and including the 20th day of the month shall pay the regular dues for that month. Their names shall be entered on the books of the L.U. and sent for enrollment at the International Office as of the first day of that month, their mem- bership in the future to date from date of enroll- ment. Members joining after the 20th day of the 1222 in breach of its amnesty agreement with Greyhound and in violation of Sec 8(b)(1)(A) of the Act 15 The strike extended from 3 November through 21 December 1983. 1062 DECISIONS OF THE NATIONAL. LABOR RELATIONS BOARD month will be entered on the books at the L.U. and sent for enrollments as having joined on the first day of the coming month, and they will commence the payment of their dues and their membership will date from the date. Members will be enrolled on payment of the initiation fee or, where the initi- ation fee is payable in installments, on payment of any part thereof. Various employees, all of whom had signed the check- off forms described above and had not submitted to the Union or the employer any repudiation of the authoriza- tion, resigned from the Union-some in November and some in December 1983. Since the strike Respondent Local 1225 has taken the position that the financial core members described here were required to pay union dues, not including death, disability, and retirement as- sessments, for the month of December 1983 and, consist- ent with that position, Respondent Local 1225 demanded that these financial core members pay the December 1983 union dues, and has requested Greyhound the dues from the wages of financial core members and transmit same to Respondent Local 1225.16 The General Counsel alleges the efforts of Respondent 1225 in this regard vio- late Section 8(b)(1)(A) and (2) of the Act. - Two separate questions arise. First, do the checkoff authorizations, which the parties stipulated were not re- voked by the individuals involved, support or justify the conduct of Respondent Local 1222 irrespective of any union-security obligations under the contract. Second, as- suming the Union's conduct was not privileged by the checkoff authorizations, may Respondent Local 1225 have made such dues demands based on the application of the contract's union-security clause to the employees in question. These issues will be discussed separately.- The Board has held that, irrespective of the existence of a contract with a union-security clause, an employee- submitted checkoff authorization that had not been re- voked, abrogated, terminated, or canceled may be hon- ored during its term by an employer. Frito-Lay, Inc., 243 NLRB 137 (1979). The question here is whether the acts of resignation of the individuals revoked or terminated, by operation of law, their dues-checkoff authorizations. 16 The employees are: James Ashmore Tom Beesler Roberta Black Frank Bowman Kevin Brown Clarence Burnes Courtney Carlson Ken Chernock Alfredo Cicardmi Dawn Cook Allen Dauphine Danny Day Carolyn Denard Boyd Dillon Marilyn Gallagher Miguel Garcia William Hayes Joseph Heck Janet Hisel Marlin Kleinert Richard Longstreth Judy Meixner Henry Miller James Mosher Robert Roberts James Sheppard Ronald Stulir Steven Swope Julius Veitenheimer Charles Wood In Carpenters (Campbell Industries), 243 NLRB 147 (1979), the Board found the following checkoff authori- zation language constituted a quid pro quo for union membership and, therefore, was revoked by the act of resignation from the union: ... in consideration of the benefits received and to be received by me as a result of my membership in the union. [243 NLRB 147, 149.] In Steelworkers Local 7450 (Asarco), 246 NLRB 879 (1979), the Board found the following dues-checkoff au- thorization language was limited to the payment of dues in consideration of union membership and was thus re- voked by operation of law at the time of union resigna- tion. Pursuant to this authorization and assignment, please deduct from my pay each month while I am employed within the collective-bargaining unit in the Company, monthly dues, assessments and (if owing by me) an initiation fee each as designated by the [Union], as my membership dues in said Union [246 NLRB 879, 882]. In Machinists Local 24 (Eagle Signal), 268 NLRB 635 (1984), the Board found the following wage assignment was canceled by resignation from the union. ... to deduct from my pay beginning with the cur- rent month initiation or reinstatement fees and my regular monthly Union dues as certified to the Company by the [Union] in accordance with regu- lar membership dues in the [Union]. [268 NLRB 635, 638.] Applying the holding of those cases, I find,the authori- zations in the instant case, which contain the critical ref- erence "as my membership dues in said union," to consti- tute a quid pro quo for union membership. Thus, consist- ent with the cases cited above, I find that the union-dues checkoff authorization were revoked by operation of law when the individuals resigned from the Union. Thus, the checkoff forms do not justify the actions of Respondent Local 1225 in attempting to collect December 1983 dues. The new contract was ratified on 19 December 1983 and workers returned to work on 21 December 1983. Thus, none of the 30 individuals involved here com- menced work for Greyhound before 21 December 1983. As quoted supra, the Union's governing regulations pro- vide that members joining after the 20th day of the month pay dues from the following month. Thus, irre- spective of whether or not the union security-clause ap- plied on either the first or some subsequent day after re- employment, the 30 employees involved here would not be liable for December dues because their commence- ment of employment occurred after 20 December 1983. Accordingly, under any interpretation of the case law or its subsequent evolution,i? the Union is not justified in 17 Compare Carpenters (Campbell Industries), 243 NLRB 147 (1979), with A.O Smith Corp, 227 NLRB 854 (1977) See also Professional Engi- neers Local 151 (General Dynamics), 272 NLRB 1051 (1984) TRANSIT UNION LOCAL seeking December dues payment for employees because of their return to work following the strike. According- ly, I find that the Union has attempted to impose a dues liability for time periods in which no union-security clause by its terms was in effect and has thereby violated Section 8(b)(1)(A) and (2) of the Act. Typographical Union Local 53, 225 NLRB 1281 (1976). My finding is not otherwise for those individuals who failed to resign their membership prior to 1 December. The Union is not free to seek from an employer dues from employees who ceased to be members before any union-security obligation ripened. Having found that no union-security obligation for these 30 individuals at- tached during the month of December, it follows that even regarding these individuals, the Union's attempts to obtain dues from the Employer violated Section 8(b)(1)(A) and (2) of the Act. Railway Clerks (NCR Corp., 235 NLRB 666 (1978); Railway Clerks Local 1936 (NCR Corp.), 229 NLRB 243 (1977). THE REMEDY Having found that Respondents engaged in certain unfair labor practices, I shall recommend that each be ordered to cease and desist therefrom, and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents fined and suspended certain individuals in violation of Section 8(b)(1)(A) of the Act, I shall recommend that each be ordered to re- scind the fines and suspensions. As of the date of the trial, individuals had not paid the union fines. If since that time all or part of the fines have been paid, " Re- spondents, and each of them, are to refund that money to the individuals with interest to be computed in the manner set forth in Florida Steel Corp., 231 NLRB 651 (1977). I' shall further recommend that Respondents be ordered to remove from their files any reference to the unlawful fines and suspensions and to notify each indi- vidual ; in' writing that this has been done and that the fines and suspensions will not be used against them in any way. Having found that Respondent Local 1225 was im- properly seeking dues from certain individuals and from Greyhound at a time when those individuals were not obligated by either the union-security clause of the con- tract or by a valid and continuing dues-checkoff authori- zation form to pay such dues, I shall require Respondent Local 1225 to notify Greyhound and each employee that it is not seeking dues from these individuals for Decem- ber 19$3. Although there is no record evidence that dues were paid, I shall order that any dues collected by Re- spondent Local 1225 shall be repaid to the individuals, with interest in accordance with the formula prescribed in Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). By stipulation of the parties; the amount of such dues, if any, will be deter- mined at the compliance stage of this proceeding. CONCLUSIONS OF LAW 1. Respondents, and each of them, are labor organiza- tions within the meaning of Section 2(5) of the Act. 1225 (GREYHOUND LINES) 1063 2. Charging Party Greyhound is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. Respondent Local 1222 took adverse action includ- ing conducting of hearings, issuance of fines, and direc- tion of suspensions, against the following individuals be- cause of their actions in supporting Charging Party Greyhound during Respondent Local 1222's strike against it in violation of an amnesty agreement negotiat- ed between the parties thereby violating Section 8(b)(1)(A) of the Act: H. M. Aintablian Gilbert Amis Hussein Ayache Demitrius Baptiste Leon Bradley E. Brook La Juan Butler Kenneth Cook Lloyd De Loatch Randolph Dickerson Arnold Fehling Anthony Festa Netis Friday Robert Harris John Johnson Julius King David Lewis Wesley Marshall Louis Million Gary Mitchell W. Neff Emma Norton Daniel Owen Ray Oviatt George Palcaios John Patmore Leroy Penson Ralph Ryder Richard Shields Ed Sumner Rex Walsh David Weigle T. C. Williams 4. Respondent Local 1225 took adverse action includ- ing conducting of,hearings, issuance of fines, and direc- tion of suspensions, against the following individuals, be- cause of their actions in supporting Charging Party Greyhound during Respondent Local 1222's strike against it in violation of an amnesty agreement negotiat- ed between the parties thereby violating Section 8(b)(1)(A) of the Act: Gilbert Altimarano James Ashmore Frank Bowman Kevin Brown Clarence Burnes Courtney Carlson Ken Chernock Alfredo Cicardini Don Cook Edward Crabtree Allen Dauphine Carolyn Denard Boyd Dillon Marilyn Gallagher Migues Garcia Joseph Glon William Hayes Joseph Heck Marilyn Kleinert Richard Longstreth Judy Meixner Henry Miller James Mosher Robert Roberts James Shepherd Ronald Stulir Stephen Swope Charles Wood Dwight Ynez Stanley Zarconi 5. Respondent Local 1225 attempted to collect dues for the following listed individuals both from the individ- uals and from Charging Party Greyhound at a time when those individuals were not obligated to pay dues pursuant to the union-security clause or pursuant to a valid dues-checkoff authorizations thereby violating Sec- tion 8(b)(1)(A) and (2),of the Act: 1064 James Ashmore Tom Beesler Roberta Black Frank Bowman Kevin Brown Clarence Burnes Courtney Carlson Ken Chernock Alfredo Cicardim Dawn Cook Allen Dauphine Danny Day Carolyn Denard Boyd Dillon Marilyn Gallagher DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Miguel Garcia William Hayes Joseph Heck Janet Hisel Marlin Kleinert Richard Longstreth Judy Meixner Henry Miller James Mosher Robert Roberts James Sheppard Ronald Stulir Steven Swope Julius Veitenheimer Charles Wood E. Brook La Juan Butler Kenneth Cook Lloyd De Loatch Randolph Dickerson Arnold Fehling Anthony Festa Netis Friday Robert Harris John Johnson Julius King David Lewis Daniel Owen Ray Oviatt George Palcaios John Patmore Leroy Penson Ralph Ryder Richard Shields Ed Sumner Rex Walsh David Weigle T. C. Williams 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Respondents have not otherwise violated the Act. On these findings of fact and conclusions of law' and on the entire record, I issue the following recommend- ed's ORDER A Respondent Amalgamated Transit Union, Local Di- vision No. 1222, AFL-CIO, CLC, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining or coercing employees in the exercise of their Section 7 rights, specifically including the right to refrain from all organizational activity, except to the extent such right may be affected by an agreement re- quiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the Act. (b) Taking adverse action against members, including but not limited to conducting of hearings or trials, issu- ance of fines and expulsions, because of members' activi- ties in support of Greyhound Lines, Inc., during the 1983 strike, in violation of an amnesty agreement entered into between the Amalgamated Transit Union and Grey- hound Lines, Inc. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind all notices of hearing, trial minutes, trial verdicts, fines, and expulsions against the following indi- viduals that were based on their acts and conduct during the 1983 strike and notify each individual in writing that this has been done and that the adverse actions will not be used against each individual in any way whatsoever: H. M. Aintablian Wesley Marshall Gilbert Amis Louis Million Hussein Ayache Gary Mitchell Demitrius Baptiste W. Neff Leon Bradley Emma Norton 18 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (b) Post at its office and meeting halls, copies of the attached notice marked "Appendix A." Copies of the notice, on forms provided by the Regiopal Director for Region 28, after being signed by Respondent Local 1222's authorized representative, shall be posted by the Respondent Local 1222- immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent Local 1222 to ensure that the notices are not altered, defaced, or covered by any other material. (c) Additional copies of "Appendix A" shall be signed by Respondent Local 1222's authorized representative and forthwith returned to the Regional Director. These notices shall be furnished to Greyhound Lines, Inc. and, if willing, be posted by it in places where notices to em- ployees are customarily posted. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. B. Respondent Amalgamated Tra.isit Union, Local Di- vision No. 1225, AFL-CIO, CLC, its officers, agents, and representatives, shall 1. Cease and desist from (a) Restraining or coercing employees in the exercise of their Section 7 rights, specifically including the right to refrain from all organizational activity, except to the extent such right may be affected by an agreement re- quiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the Act. - (b) Taking adverse action against members, including but not limited to conducting of hearings or trials, issu- ance of fines and expulsions, because of members' activi- ties in support of Greyhound Lines, Inc., during the 1983 strike, in violation of an amnesty agreement entered in between the Amalgamated Transit Union and Grey- hound Lines, Inc. (c) Causing or attempting to cause Greyhound Lines, Inc. to discriminate against employees in violation of Section 8(a)(3) of the Act by seeking December 1983 dues payments from the Employer for employees when they were not obligated to pay such dues. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind all notices of hearing, trial minutes, trial verdicts, fines, and expulsions against the following indi- viduals that were. based on their acts and conduct during the 1983 strike and notify each individual in writing that TRANSIT UNION LOCAL 1225 (GREYHOUND LINES) 1065 this has been done and that the adverse actions will not be used against each individual in any way whatsoever. Clarence Burnes Courtney Carlson Ken Chernock Alfredo Cicardini Dawn Cook Allen Dauphine Danny Day Carolyn Denard Boyd Dillon Marilyn Gallagher Richard Longstreth Judy Meixner Henry Miller James Mosher Robert Roberts James Sheppard Ronald Stulir Steven Swope Julius Veitenheimer Charles Wood Gilbert Altamirano James Ashmore Frank Bowman Kevin Brown Clarence Burnes Courtney Carlson Ken Chernock Alfredo Cicardini Don Cook Edward Crabtree Allen Dauphine Carolyn Denard Boyd Dillon Marilyn Gallagher Miguel Garcia Joseph Glon William Hayes Joseph Heck Marilyn Kleinert Richard Longstreth Judy Meixner Henry Miller James Mosher Robert Roberts James Shepherd Ronald Stulir Stephen Swope Charles Wood Dwight Ynez Stanley Zarconi (b) Notify Greyhound Company, Inc. that it no longer seeks December 1983 dues payments for the following individuals, and notify each individual in writing that this has been done. If dues have been paid for December 1983 by these individuals, dues will be returned, with in- terest, as provided in the remedy section of this decision. James Ashmore Miguel Garcia Tom Beesler William Hayes Roberta Black Joseph Heck Frank Bowman Janet Hisel Kevin Brown Marlin Kleinert (c) Post at its office and meeting halls, if any , copies of the attached notice marked "Appendix B." Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by Respondent Local 1225's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. (d) Additional copies of Appendix B shall be signed by Respondent Local 1225's authorized representative and forthwith returned to the Regional Director . These no- tices shall be furnished to Greyhound Lines, Inc. and, if willing, be posted by it in places where notices to em- ployees are customarily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.