Dick'S Restaurant

1180 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hotel Employees, Restaurant Employees and Bar- tenders Union, Local 50, AFL-CIO (Abdel M. Hafed, a sole proprietorship, d/b/a Dick's Res- taurant) and Patricia Bowers, Patricia Fee, Mi- kelin McJunkin, Joellyn Trisler, and June Ver- cammen Hotel Employees, Restaurant Employees and Bar- tenders Union, Local 50, AFL-CIO (Abdel M. Hafed, a sole proprietorship, d/b/a Dick's Res- taurant) and Patricia Fee. Cases 32-CB-2499 32-CB-2557. 10 February 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On 2 December 1987 Administrative Law Judge Roger B. Holmes issued the attached decision. The Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Hotel Em- ployees, Restaurant Employees and Bartenders Union, Local 50, AFL-CIO, Hayward, California, its officers, agents, and representatives, shall take the action set forth in the Order. David Dominguez, Esq., for the General Counsel. William A Sokol, Esq (Van Bourg, Weinberg, Roger & Rosenfeld), of San Francisco, California, for the Re- spondent. DECISION STATEMENT OF THE CASE ROGER B. HOLMES, Administrative Law Judge. The Charging Parties in Case 32-CB-2499 are Patricia Bowers, Patricia Fee, Mikelin McJunkin, Joellyn Trisler, and June Vercammen The original unfair labor practice charge in that case was filed on 2 December 1986. The amended unfair labor practice charge in that case was filed on 8 January 1987. The Regional Director for Region 32 of the National Labor Relations Board, who was acting on behalf of the General Counsel of the Board, issued on 13 January 1987 a complaint and notice of hearing in Case 32-CB-2499 The General Counsel alleged that the Respondent, Hotel Employees, Restaurant Employees and Bartenders Union, Local 50, AFL-CIO, had engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act The Respondent filed an answer to the General Counsel's complaint, and the Respondent denied that it had committed the alleged unfair labor practices, and the Respondent raised certain affirmative defenses I usually will refer to the Respondent in this decision as the Union The Charging Party in Case 32-CB-2557 is Patricia Fee The charge in that case was filed on 3 February 1987. The Regional Director for Region 32 issued on 25 February 1987 a complaint in Case 32-CB-2557 against the Respondent Union The General Counsel alleged in that complaint that the Respondent had engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. The Respondent filed an answer to the General Counsel's allegations, in which the Respond- ent denied that it had committed the alleged unfair labor practices and raised certain affirmative defenses. On 2 March 1987 the Regional Director for Region 32 issued an order consolidating cases and notice of hearing in Cases 32-CB-2499 and 32-CB-2557. I heard the evidence in this proceeding at the hearing, which was held on 8 April 1987 at Oakland, California I recessed the hearing at the end of that day in order to allow the General Counsel time in which to consider his seeking court enforcement of two subpoenas that had been issued at the request of the General Counsel. Subse- quently, the General Counsel advised by letter that the General Counsel rested his case, and thereafter the attor- ney for the Respondent also advised by letter that he rested his case. Therefore, on 19 May 1987 I issued an order closing the record in this proceeding, and I set 23 June 1987 as the date for filing posthearing briefs. Coun- sel for the General Counsel timely filed his brief by the due date. The caption of the case in this proceeding appears as it was amended at the hearing, and also to reflect the cor- rect spelling of the first name of Joellyn Trisler FINDINGS OF FACT 1. JURISDICTION Abdel M. Hafed is a sole proprietorship doing business as Dick's Restaurant I usually will refer to that entity in this decision as the Employer. The Employer operates a restaurant in San Leandro, California. The parties stipulated at the hearing that, at all times material, and during the preceding 12 months, the Em- ployer, in the course and conduct of its business oper- ations, derived gross revenues in excess of $500,000 The parties further stipulated that, during the same period of time, the Employer purchased and received goods, in- cluding liquor and other goods, valued in excess of $5000, which goods had originated outside the State of California Based on the foregoing and the evidence presented in this case, I find that the Employer has been at all times material an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 287 NLRB No. 119 HOTEL & RESTAURANT EMPLOYEES LOCAL 50 (DICK'S RESTAURANT) 1181 11 LABOR ORGANIZATION Based on the pleadings and the evidence presented in this case, I find that the Union has been at all times ma- terial herein a labor organization within the meaning of Section 2(5) of the Act q I THE ALLEGED UNFAIR LABOR PRACTICES A Events Prior to August 1986 The findings of fact throughout this decision are based on credited portions of the testimony of the six witnesses who testified at the hearing, and certain findings are based on documentary evidence introduced at the hear- ing. All the witnesses were called by the General Coun- sel, and all the documentary evidence was offered by the General Counsel. The witnesses are Abdel M. Hafed, who is the Employer, and the five individual Charging Parties. In making credibility resolutions, I primarily have relied on the demeanor of the witnesses as they testified, and whether they spoke in a convincing manner in re- sponding to questions. In addition, I gave consideration to the probability of the witnesses' accounts and the con- sistency of their accounts I also gave consideration to the witnesses' perception, their memory, and their ability to relate past events accurately. I also have been guided by the holding that it is common that a trier of fact will believe some of the testimony of witnesses, but not nec- essarily believe all of it. NLRB v. Universal Camera Corp, 179 F 2d 749 (2d Cir 1950) Prior to August 1986 Patricia Fee had seen at the Union's office the person known to her as Barbara Horton She said Horton was black On those occasions when Fee paid her union dues at the Union's office, Horton received Fee's money; stamped Fee' s union. book; and gave Fee a receipt from the Union's computer In 1985 Fee filed a complaint with the Union against Mario, who was the manager of the Employer's restau- rant at that time, for issuing a warning notice to Fee. Fee believed that Horton assisted her in that matter, but she was not positive Fee believed that Horton explained to her how to file a complaint, for Fee to state that Fee did not agree with what Mario had said , that the Union would meet with Mario and discuss the issue; and then the Union would inform Fee of what, if anything, was going to be done about it About 2 months prior to the Union's strike, which began in August 1986, on one occasion Fee observed that Horton gave "a work slip" to a man who had come there about a job, and that Horton told the man where to go for the job Fee overheard Horton tell the man that that was all there was at the time. On one occasion at the union office Fee had asked the woman what her name was She told Fee what her name was, but Fee remembered only her first name of "Bar- bara " After Fee received the Postal Service return re- ceipt card signed by a "Barb Horton," Fee remembered that the woman's last name was Horton General Coun- sel's Exhibit 25 is a photostat of that document It shows 20 January 1987 as the date of delivery of the letter. It also shows that the letter had been addressed to Peggy Turner, secretary-treasurer of the Union, at the Union's office. i On occasions prior to 11 August 1986 Patricia Bowers had seen the same woman at the union office who Bowers saw at the union office on II August 1986, as will be described in section B of this decision. Bowers had observed the same woman working at the Union's computer, also making out slips of paper to send people out to jobs, maintaining a file with members' names, and a file of what jobs were open On three or four occasions Bowers overheard her tell someone about jobs that were open. In addition, the same woman had received union dues payments from Bowers at the Union's office at least through February 1987.2 The foregoing findings are uncontradicted Horton did not testify at the hearing. General Counsel's Exhibit 3 is a copy of a subpoena ad testificandum that the General Counsel had served and that was addressed to- "Barbara (Last name unknown) (Dispatcher, Counter person, Cashier)" at the Union's office. General Counsel's Exhibit 2 is a copy of a subpoena duces tecum that the General Counsel served on the Union for production of certain documents at the hear- ing in this proceeding The Postal Service return receipt card attached for receipt of delivery of certified mail shows the date of delivery as 1 April 1987, and it was signed for by a "Barbara Horton " Among other items, the subpoena duces tecum requested that the Union produce 7. Respondent's complete personnel files main- tained regarding its employee Barbara who performs counter/cashier/dispatching duties, includ- ing job descriptions, payroll records and any other document showing the duties, authority and respon- sibilities of employment of Barbara . 8 All documents of whatever nature kept or maintained by Respondent signed or initialed by Barbara during the period January 1, 1985 through March 31, 1987. The Union did not produce the subpoenaed documents at the hearing 3 B. The Events in August 1986 As indicated previously in the statement of the case, the five Charging Parties are Patricia Bowers, Patricia Fee, Mikelin McJunkin, Joellyn Trisler, and June Ver- cammen. At the times relevant, Bowers, Fee, and Trisler were waitresses at the Employer's restaurant, Vercam- men was the head waitress at the Employer's restaurant; and McJunkin was the hostess at the Employer's restau- rant. All five of the Charging Parties were members of the Union prior to 11 August 1986.4 i The foregoing findings are based on credited portions of the\testimo- ny of Fee and on documentary evidence 3 The foregoing findings are based on credited portions of the testimo- ny of Bowers 3 The findings in the foregoing paragraphs are based on documentary evidence and the record in this proceeding 4 The foregoing findings are based on credited portions of the testimo- ny of Bowers, Fee, McJunkm, Trisler, and Vercammen 1182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On the Wednesday before the strike began, Peggy Turner, secretary-treasurer of the Union, asked Fee to help in handing out pamphlets. Turner was supposed to meet with the employees, but she did not do so. Joelan Diephuis, a union agent, gave copies of the pamphlet to Fee and two other waitresses at the Employer's restau- rant, Winnie and Donna. The pamphlet indicated that the Union was not yet on strike, but Fee believed the pamphlet had the same effect because people were stay- ing away from the restaurant. Fee said at the hearing that she did not like what the Union was doing regard- ing the issues,5 It was admitted in the pleadings that the Union com- menced a strike against the Employer about 7 August 1986. Abdel M. Hafed, the Employer, said that the Union's strike against the employer lasted from 7 August to 29 August 1986.6 McJunkin received a telephone call after the strike had begun from Hafed. Hafed told McJunkin that there was going to be a meeting on Saturday at the restaurant to talk about their work schedules.' Vercammen received a telephone call after the strike had begun from Mario, who she said was the brother of Hafed and who had his own restaurant at that time Mario told Vercammen that there was going to be a meeting on Saturday at the Employer's restaurant to talk about the strike.8 Fee believed that Vercammen telephoned her and told Fee about a meeting to be held on Saturday, but she was not sure that it was Vercammen. Fee was told that there would be a meeting for those who wanted to work or who needed to work, and that they would be given work schedules. Fee talked with Vercammen about re- signing from the Union, and Fee told Vercammen that She should bring a copy of her resignation to the meet- ing and show it to Vercammen. Separately, Fee also had telephone conversations about the strike with Trisler, Cathy McJunkin, who is the mother of Mikelin McJunkin, and Vicky Mahoney, who was a waitress at the Employer's restaurant. Mahoney told Fee that "they were going to get Al." At the hear- ing Fee said that she did not believe in what the Union was doing, and she had decided to resign from the Union.9 Bowers received a telephone call after the strike had begun from Fee. Fee told Bowers that everybody had decided to meet at the restaurant in order to discuss things. 10 5 The foregoing findings are based on credited portions of the testimo- ny of Fee, the pleadings and a stipulation that Diephuis is an agent of the Union within the meaning of Sec 2(13) of the Act Turner, Diephuis, Wmnie, and Donna did not testify at the hearing in this proceeding 6 The foregoing findings are based on the pleadings and credited por- tions of the testimony of Hafed r The foregoing findings are based on credited portions of the testimo- ny of McJunkin 8 The foregoing findings are based on credited portions of the testimo- ny of Vercammen Mario did not testify at the hearing in this proceeding 9 The foregoing findings are based on credited portions of the testimo- ny of Fee Cathy McJunkm and Vicky Mahoney did not testify at the hearing in this proceeding 10 The foregoing findings are based on credited portions of the testi- mony of Bowers. On Saturday, 9 August 1986, there was a meeting at the restaurant, which began about 11 a.m. and lasted be- tween a half hour to 1 hour. Present at the meeting were Hafed, Bowers, Fee, McJunkin, and Vercammen. The restaurant was not open to the public that day, but there were some customers in the bar and also J. R, who is the bartender and a brother of Hafed. Bowers asked Hafed if she could come back to work. Hafed said yes; that he had work, but no one to help him. Hafed told the group that, if they decided to with- draw from the Union, he would let them come back to work when he reopened the restaurant. Hafed also told the group that he did not know when the restaurant would reopen. Bowers said that she wanted to work, and that she was going to withdraw from the Union on Monday because she needed to work. Vercammen volunteered at the meeting that she would come back to work. She wanted to withdraw from the Union because she needed to work. She said Hafed an- swered questions from the employees at the meeting, but she did not recall what was asked. McJunkin asked Hafed what her schedule would be. Hafed replied that she would work Monday through Friday from 11 a.m. until the restaurant closed in the evening. Fee asked Hafed what was going on, and if he had heard anything about the issues. Hafed replied that he had not gotten any response regarding the negotiations. Fee gave Hafed a copy of her proposed resignation from the Union (See G.C. Exh. 18.) She told Hafed that she needed to work. Hafed replied that it had to be strictly voluntary on Fee's part, and that Hafed was not asking for anything. Fee also showed a copy of her proposed resignation to the other employees at the meeting, and Fee told them she would make copies for them if, they Wanted copies The end result of the Saturday meeting was that the four employees decided to go to the union hall on Monday, 11 August 1986, to withdraw from the Union or to resign union membership. I i Fee, Trisler, and Vercammen met at the BART station in Hayward on Monday morning, 11 August 1986. Fee brought with her copies of her proposed resignation from the Union. The document was addressed to the Union and was dated 8 August 1986. The text of the document stated: To Whom It May Concern I, , wish it to be known that as of August 8, 1986, I resign my membership in, and any affiliation with Union Local 50 also known as "Hotel Employees, Restaurant Employees, and Bar- tenders Union." - Signed Date 11 The findings in the foregoing paragraphs are based on a composite of credited portions of the testimony of Bowers, Fee, McJunkin, and Vercammen Hafed did not describe the contents of the meeting on Sat- urday during his testimony J R did not testify at the hearing in this proceeding HOTEL & RESTAURANT EMPLOYEES LOCAL 50 (DICK'S RESTAURANT) Fee wrote in her name, and she signed and dated a form for herself and later that day gave it to Horton (See G C Exh 18) Later Bowers did the same that day. (See G.C. Exh 6.) Later McJunkin did the same that day (See G C Exh 15.) On the documents for Trisler and Vercammen, Fee changed the word "resign" to the word "retire" on copies of the document described above while they were at the BART station that morning. (See G C. Exh 10) Trisler and Vercammen wrote in their names and signed and dated the documents and later gave the documents to Horton that day The reason for the change to the word "retire" was the belief of Trisler and Vercammen that they would protect their retirement benefits by doing so. Bowers joined Fee, Trisler, and Vercammen outside the union hall that morning. While they were standing there, Peggy Turner came out of the union office and handed them a piece of paper, which was introduced into evidence as General Counsel's Exhibit 5 at the hear- ing. Turner said something to them about "scabs" or that they had shown how to break the picket line The text of the document stated. Thank you for the information on how to become a SCAB by withdrawing from Local 50 I prefer to maintain my dignity and respect by continuing to picket until The East Bay Restaurant Association decides to offer us a contract with NO TAKE AWAYS. There were blank spaces provided, on General Coun- sel's Exhibit 5 for a signature, a date, and the name of the employer. McJunkin arrived at the union office in her mother's car She joined the other Charging Parties after they had entered the union office. i 2 Inside the union office the five Charging Parties spoke with the person who has been identified as Barbara Horton. (See sec. A of this decision) They asked Horton for withdrawal cards from the Union Horton replied that withdrawals had been frozen because of the strike, but they could sign a piece of paper if they wanted with- drawal cards, and Horton would give the paper to Turner when Turner returned. The five Charging Parties signed their names on the tablet Horton gave them, and then they returned the tablet to Horton Next Horton told them that, even with a withdrawal, they had to be current in their union dues. Bowers, Fee, McJunkin, and Trisler then paid their union dues so that they would be currently paid up. Vercammen did not have to do so be- cause she already was current in her dues at that time Thereafter, at the times relevant in this proceeding, all five of the Charging Parties have continued to pay to the Union monthly amounts equivalent to union dues At the hearing Fee and Vercammen described themselves as being "financial core" members The other opinions ex- pressed at the hearing by the Charging Parties as their 12 The findings in the foregoing paragraphs are based on a composite of credited portions of the testimony of Bowers, Fee, McJunkin, and Vercammen and on documentary evidence 1183 continuing to be union members by paying an amount equivalent to union dues each month, even though they had resigned union membership, have to be considered merely as lay opinions of their status The five Charging Parties then went outside the 'union hall, and they discussed among themselves whether they should resign from union membership Bowers and Fee were the first to decide to do so, and they returned inside the union office Within a minute or so McJunkm, Trisler, and Vercammen also went back inside the union office All five of the Charging Parties then handed to Horton signed copies of the resignation letters previously described in this section (See G C Exhs 6, 10, 15, and 18.) When the Charging' Parties handed in their resigna- tions from union membership, Horton stated that they would be blackballed from 'ever working in a union house and from ever being affiliated with any union 13 C The Events in September 1986 The General Counsel's Exhibit 4 is a copy of a notice dated 8 September 1986 from the Union The document is an official notice from the Union to both the Employ- er and the five Charging Parties In part, the document states . "The below ,named employees have not yet ob- tained membership in the Union and must pay the desig- nated initiation fees and dues " The notice contained the names of the five Charging Parties in this proceeding, and the amount of $74 50 for each one to pay to the Union The Union's notice further stated "In compliance with the Collective Bargaining Agreement requiring em- ployees to obtain and retain membership as a condition of Employment, this will serve as Official Notice to ter- minate the above-named employees from their jobs if the specified amounts are not paid on or before the close of business on September 15, 1986. 14 Abdel M Hafed , the Employer, received a copy of General Counsel's Exhibit 4 about 8 September 1986 from the Union Within 2 or 3 days after Hafed received General Counsel 's Exhibit 4, Hafed spoke individually to the five Charging Parties . Hafed told them that he had received a letter from the Union , and Hafed showed them a copy of the Union's notice Hafed ,told them that it was their responsibility to answer the Union 's letter. Hafed did not tell them that he would terminate them, nor did Hafed say he would not do so The Union did not further communicate with Hafed regarding the fore- going matter 15 General Counsel's Exhibit 7 is a copy of a letter dated 8 September 1986 from the Union A copy of that letter was received by each one of the five Charging Parties In summary , the Union 's letter stated that the Union had a mandatory picket program , each Charging Party had failed to picket, each Charging Party owed $32; each Charging Party must contact the Union to schedule 13 The findings in the foregoing paragraphs are based on a composite of credited portions of the testimony of Bowers, Fee, McJunkin, and Vercammen and on documentary evidence As indicated previously, Horton did not testify at the hearing in this proceeding 14 The foregoing findings are based on documentary evidence 15 The foregoing findings are based on credited portions of the testi- mony of Hafed, Bowers, Fee, McJunkin, Trisler, and Vercammen 1184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD picket duty prior to 1 October 1986 or pay $32 immedi- ately.16 As a result of the foregoing, Fee decided to contact a labor relations attorney She contacted Attorney Lori A. Bowman of Littler, Mendelson, Fastiff & Tichy of San Francisco, California Fee knew that Attorney Bowman also represents the Employer Fee had seen Attorney Bowman having lunch at the restaurant after the strike had begun. 17 General Counsel's Exhibit 19 is a copy of a letter dated 12 September 1986 from Attorney Bowman to the Union In summary, the letter advised the Union that she represented the five Charging Parties; that the five Charging Parties had resigned their membership and wished to remain "financial core members"; and that unfair labor practice charges would be filed against the Union if the Union persisted in its actions described in General Counsel's Exhibits 4 and 7.18 Within a week after receiving a copy of General Counsel's Exhibit 7, Vercammen spoke with Joelan Die- phuis at the Employer's restaurant. Diephuis told Ver- cammen that she had to pay an initiation fee. Vercam- men replied that she did not have to pay it, and that Vercammen had contacted a lawyer. Vercammen then showed Diephuis the letter from Attorney Bowman, which is summarized above. Diephuis then left the res- taurant. 19 D. The Events in November 1986 General Counsel's Exhibits 8, 11, 13, 16, and 20 are copies of letters dated 26 November 1986 from the Union to Bowers, Vercammen, Trisler, McJunkin, and Fee, respectively. Each one of the Charging Parties re- ceived a copy of the Union's letter addressed to her In summary, each letter notified each Charging Party that charges had been filed against her pursuant to the Inter- national Union's bylaws and Local 50's bylaws. The charges against each Charging Party were that she had engaged in conduct unbecoming a union member and conduct damaging to the Union The letter notified each Charging Party that a trial committee would hear the charges against her on 8 December 1986, and that her failure to appear at the Union's hearing would be as- sumed to be an admission of her guilt All of the exhibits specified above had photostatic copies of certain portions of the International Union's bylaws and Local 50's bylaws, as are attached to General Counsel's Exhibit 11.20 16 The foregoing findings are based on credited portions of the testi- mony of Bowers, Fee, McJunkin, Trisler, and Vercammen and on docu- mentary evidence " The foregoing findings are based on credited portions of the testi- mony of Fee 18 The foregoing findings are based on documentary evidence 19 The foregoing findings are based on credited portions of the testi- mony of Vercammen Diephuis did not testify at the hearing in this pro- ceeding As indicated previously, it was stipulated that Diephuis is an agent of the Union within the meaning of Sec 2(13) of the Act 20 The foregoing findings are based on credited portions of the testi- mony of Bowers, Fee, McJunkin, Trisler, and Vercammen, on documen- tary evidence, and on stipulations by the parties As a result of receiving General Counsel's Exhibit 20, Fee made telephone calls to the Union's office. Fee asked to be informed of the specific charges against her. Fee asked to speak with Turner, and she was told that her telephone call would be returned, but it was not. As a result, Fee once again telephoned the Union's office and asked to speak with Turner, the Union's attorney, or someone who would clarify to Fee exactly what kind of conduct the charges were referring to No one returned her telephone call. As a result of not having her tele- phone calls to the Union answered, Fee again telephoned her attorney, Lori Bowman, and asked Attorney Bowman to look into the matter Attorney Bowman wrote a letter dated 2 December 1986 to Turner. Gener- al Counsel's Exhibit 21 is a copy of that letter. In sum- mary, the letter asserted that all five of the Charging Parties had resigned their union membership; that charges had been filed against the Union because of the Union's action against the Charging Parties; that the Union's charges against the Charging Parties lacked specificity; and that the Charging Parties would not appear at the Union's hearing.21 E. The Events in December 1986 General Counsel's Exhibits 9, 12, 14, 17, and 22 are copies of letters dated 22 December 1986 from the Union to Bowers, Vercammen, Trisler, McJunkin, and Fee, re- spectively Each one of the Charging Parties received a copy of the Union's letter addressed to her. In summary, each letter notified each Charging Party that a union trial committee had found her guilty on 8 December 1986 of violating local union bylaws, article 12, and the International Union's constitution, article XX. Each letter notified each Charging Party that the Union' s trial committee had fined her three full picket shifts and $354; that the trial committee's decision had been ratified on 16 December 1986 by the union membership; and that she was ordered to forward $354 to the Union and to con- tact the Union to schedule her picket duty.22 F The Events in January 1987 General Counsel's Exhibit 23 is a copy of a letter dated 12 January 1987 from the Union to Fee. In summa- ry, the letter notified Fee that charges had been filed against her pursuant to the International Union's bylaws and Local 50's bylaws. The Union's charges against Fee were that she had engaged in conduct unbecoming to a union member and conduct damaging to the Union. The letter notified Fee that a trial committee would hear the charges against her on 26 January 1987, and that her fail- ure to appear at the Union's hearing would be assumed to be an admission of her guilt 23 21 The foregoing findings are based on credited portions of the testi- mony of Fee and documentary evidence 22 The foregoing findings are based on credited portions of the testi- mony of Bowers, Fee, McJunkin, Trisler, and Vercammen and on docu- mentary evidence 22 The foregoing findings are based on credited portions of the testi- mony of Fee, documentary evidence, and an admission of the allegations in par 8 of the General Counsel's complaint in Case 32-CB-2557 HOTEL & RESTAURANT EMPLOYEES LOCAL 50 (DICK'S RESTAURANT) 1185 As a result of receiving General Counsel's Exhibit 23, Fee telephoned the Union's office, and she asked exactly what the charges were against her. Fee also wrote a letter dated 16 January 1987 to the Union. In summary, she requested to be informed of what conduct the Union was referring to in General Counsel's Exhibit 23. Gener- al Counsel's Exhibit 24 is a copy of Fee's letter 24 G. Conclusions Based on the foregoing findings of fact, I conclude that the evidence established that all five of the Charging Parties resigned their union membership on 11 August 1986. The fact that the Union was conducting a strike against their Employer at that time did not restrict the right of the Charging Parties to resign their union mem- bership. Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984) I have considered the fact that both Trisler and Vercammen substituted the word "retire" in place of "resign" in the documents that they submitted to the Union on 11 August 1986 I conclude from the findings set forth in section B of this decision that all five of the Charging Parties clearly indicated in a group that they no longer wished to be bound by the Union . In subsequent communications with them the Union treated all five of the Charging Parties in the same manner. See General Counsel's Exhibits 4, 7, 8, and 9 Thus, I conclude that the "inartful" use of the word "retire" instead of the word "resign" on the documents submitted to the Union by Trisler and Vercammen did not mislead the Union into thinking that those two Charging Parties did not desire to resign from the Union. Administrative Law Judge Jay R Pollack held in Electri- cal Workers IBEW Local 340 (Hulse Electric), 273 NLRB 428, 432 (1984) Absent lawful restrictions to the contrary, in order for an employee to effectively resign from membership, it is only necessary that he "clearly in- dicate that he no longer wishes to be bound by the union." Houston Lighting [262 NLRB 483 (1982)], Distillery Workers Local 80 (Capitol-Husting), 235 NLRB 1264 (1978). Thus, the Board has held oral resignations to be effective. See, e.g., Carpenters Local 1233 (Polk Construction), 231 NLRB 756, 761 (1977); Communications Workers Local 1127 (New York Telephone), 208 NLRB 258, 262-263 (1974) Further, martful demands to "withdraw" from the Union have been found by the Board to be suffi- cient on the ground that they clearly conveyed the intent to resign Capitol-Husting, supra . See also Polk Construction, supra at 758-761 Even where a portion of a union member's letter stated, "I am not resigning," the Board found that the entire document submitted by the member set forth his intent to be only a financial core member of the union. Carpenters Local 470 (Takoma Boatbuilding), 277 NLRB 513 (1985). See also Carpenters (Tullus Gordon Construe- 24 The foregoing findings are based on credited portions of the testi- mony of Fee and documentary evidence tion), 277 NLRB 530 (1985), and Telephone Traffic Union Local 212 (New York Telephone), 278 NLRB 998 (1986). Because all of the unfair labor practices found in this decision occurred after 11 August 1986, and, therefore, after the time that the five Charging Parties had resigned their union membership , I conclude that it is immaterial whether the Charging Parties had failed to exhaust their internal union remedies Teamsters Local 610 (Browning- Ferris), 264 NLRB 886, 899 fn. 24 (1982) In determining whether Barbara Horton was acting as an agent of the Union when she spoke to the five Charg- ing Parties at the union hall on 11 August 1986, it is helpful to review Section 2(13) of the Act That section states- In determining whether any person is acting as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be con- trolling Considering the findings of fact regarding Horton, which are set forth in section A of this decision, and considering the findings regarding the actions and verbal statements of Horton, which are set forth in section B of this decision, I conclude under these circumstances that it may be implied that Horton had the authority to speak for the Union when she spoke to the five Charging Par- ties at the union hall on 11 August 1986. Plasterers Local 90 (Southern Illinois Builders), 236 NLRB 329, 331 (1978); Longshoremen (Sunset Line), 79 NLRB 1487, 1507 (1948); and Bay Area-Los Angeles Express, 275 NLRB 1063, 1083 (1985) The testimony regarding her duties and responsibilities on behalf of the Union was not dis- puted, and I conclude from those earlier findings that Horton had the apparent authority to speak to the Charging Parties on behalf of the Union The General Counsel requests that I draw an adverse inference based on the fact that the Union did not produce the subpoe- naed documents with regard to Horton's duties and re- sponsibilities, and the Union did not produce Horton, who had been subpoenaed, to testify at the hearing. Be- cause such documents were relevant and within the con- trol of the Union, and because Horton's testimony was relevant and there was no satisfactory explanation about why she did not appear to testify at the hearing, I grant the General Counsel's request and draw an inference that such evidence would have been unfavorable to the Union. Martin Luther King Sr Nursing Center, 231 NLRB 15 fn. 1 (1977). Based on the findings of fact set forth in section B of this decision, I conclude that the Union violated Section 8(b)(1)(A) of the Act when Horton threatened the Charging Parties on 11 August 1986 at the union hall that they would be blackballed from ever working in a union house and from ever being affiliated with any union if they resigned their membership in the Union. Hotel & Restaurant Employees Local 483 (Highlands Inn), 227 NLRB 666 (1976); and Teamsters Local 959 (Frontier Transportation), 248 NLRB 743 (1980) Thus, I conclude that the evidence sustains the allegations in paragraphs 8 1186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and 13 of the General Counsel's complaint in Case 32- CB-2499 Based on the findings that are set forth in sections C, D, E, and F of this decision, I conclude that the evi- dence shows that the Union filed and processed internal union charges against the five Charging Parties and levied fines against the five Charging Parties after they had resigned their membership in the Union. The undis- puted documentary evidence described in those sections of the decisions establishes the foregoing. (See G C. Exhs. 7, 8, 9, 11, 12, 13, 14, 16, 17, 20, 22, and 23.) Be- cause the Charging Parties were not members of the Union at the time the Union took such action against the-a, I conclude that the Union violated Section 8(b)(1)(A) of the Act. Carpenters Local 470 (Takoma Boatbuilding), 277 NLRB 513 (1985); Carpenters (Tullus Gordon Construction), 277 NLRB 530 (1985), Automobile Workers Local 73 (McDonnell Douglas), 282 NLRB 466 (1986), Electrical Workers IBEW Local 1012 (General Electric)TI, 187 NLRB 375 (1970); and Machinists Local 758 (Menasco), 275 NLRB 755 (1985). Thus, I conclude that the evidence establishes the allegations in paragraphs 9, 11, 12(a), and 13 in the General Counsel's complaint in Case 32-CB-2499 and the allegations in paragraphs 8 and 9 in the General Counsel's complaint in Case 32- CB-2557 Based on the findings of fact that are set forth in sec- tion C of this decision, I conclude that the evidence es- tablishes that the Union attempted to cause the Employ- er to discharge the five Charging Parties if they failed to pay union initiation fees and dues (See G C Exh. 4) Be- cause the Union took that action after the Charging Par- ties had resigned their membership in the Union, and be- cause the undisputed evidence shows that the Charging Parties continued monthly to pay to the Union amounts of money equivalent to union dues, I conclude that the Union violated Section 8(b)(1)(A) and (2) of the Act. Electrical Workers Local 441 (Phelps Dodge), 281 NLRB 1006 (1986). Thus, I conclude that the evidence estab- lishes the allegations in paragraphs 10(a) and 14 in the General Counsel's complaint in Case 32-CB-2499. The Board's decision in Food & Commercial Workers Local 81 (MacDonald Meat), 284 NLRB 1084 (1987), issued after the hearing had been closed in this case. I have considered the Board's holding in that decision that "a union may lawfully expel or suspend employees who resign their union membership and return to work during a strike." In the instant case, the Respondent did not expel or suspend the five Charging Parties Instead, the Respondent took the different actions found herein. Therefore, I conclude that the Board's holding quoted above from the Meat Cutters decision does not affect the conclusions reached regarding this case Note that the Board in its decision in Meat Cutters affirmed the admin- istrative law judge's finding that the Union had violated Section 8(b)(1)(A) of the Act by imposing fines on em- ployees of E & E Meats, Inc, and King's Command Meats, Inc., who had resigned their memberships in the Union and had returned to work during the strike. CONCLUSIONS OF LAW 1. Abdel M. Hafed, a sole proprietorship, d/b/a Dick's Restaurant is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has restrained and coerced employ- ees in the exercise of their rights guaranteed in Section 7 of the Act and has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act by threatening employees, that they would be blackballed from ever working in a union house and from ever being affiliated with any union if the employees resigned their membership in the Union. 4. The Respondent has restrained and coerced employ- ees in the exercise of their rights guaranteed in Section 7 of the Act and has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act by filing and processing internal union charges against em- ployees and levying fines against employees after the em- ployees had resigned their membership in the Union. 5. The Respondent has restrained and coerced employ- ees in the exercise of their rights guaranteed in Section 7 of the Act and has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) by at- tempting to cause an employer to discharge employees for failing to pay union initiation fees and dues after the employees had resigned their membership in the Union and while the employees were paying to the Union monthly amounts equal to union dues. 6. The unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Because I have found that the Respondent has en- gaged in certain unfair labor practices within the mean- ing of Section 8(b)(1)(A) and (2) of the Act, I shall rec- ommend to the Board that the Respondent be ordered to cease and desist from engaging in such unfair labor prac- tices and to take affirmative action designed to effectuate the policies of the Act. The General Counsel has requested that a visitatorial clause be included in the Order. The evidence presented in this proceeding does not establish the necessity for such a visitatorial clause. Accordingly, I hereby deny the General Counsel's request On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed25 ORDER The Respondent, Hotel Employees , Restaurant Em- ployees and Bartenders Union, Local 50, AFL-CIO, San 25 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 HOTEL & RESTAURANT EMPLOYEES LOCAL 50 (DICK'S RESTAURANT) 1187 Leandro, California, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Restraining and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act by threatening employees that they would be blackballed from ever working in a union house and from ever being affiliated with any union if the employees resigned their membership in the Union. (b) Restraining and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act by filing and processing internal union charges against em- ployees and levying fines against employees after the em- ployees had resigned their membership in the Union. (c) Restraining and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, by at- tempting to cause an employer to discharge employees for failing to pay union initiation fees and dues after the employees had resigned their membership in the Union and while the employees were paying to the Union monthly amounts equal to union dues. (d) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act ,2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the processing of the internal union charges against Patricia Bowers, Patricia Fee, Mikelin McJunkin, Joellyn Trisler, and June Vercammen and ex- punge from the Union's files and records all references to those charges and fines against them. (b) Notify the Employer, in writing, that the Union're- scinds its request dated 8 September 1986 to discharge Patricia Bowers, Patricia Fee, Mikelin McJunkin, Joellyn Trisler, and June Vercammen, and that the union has no objection to their employment by the Employer so long as they continue to pay monthly to the Union amounts of money equivalent to union dues (c) Post at its meeting halls, offices, and other places where the Union customarily posts notices to its mem- bers, copies of the attached notice marked "Appen- dix."26 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (d) Sign and return to the Regional Director for Region 32 sufficient copies of the notice for posting by Abdel, M. Hafed, a sole proprietorship, d/b/a Dick's Restaurant, if the Employer is willing to do so, at all places where notices to employees are customarily posted by the Employer (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. APPENDIX NOTICE To MEMBERS AND EMPLOYEES 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 or- dered us to post and abide by this notice. WE WILL NOT restrain and coerce employees in the exercise of their rights guaranteed in Section 7 of the Act by threatening employees that they would be black- balled from ever working in a union house and from ever being affiliated with any union if the employees re- signed their membership in the Union. WE WILL NOT restrain and coerce employees in thr exercise of their rights guaranteed in Section 7 of th Act by filing and processing internal union charges against employees and levying fines against employees after the employees had resigned their membership in the Union. WE WILL NOT restrain and coerce employees in the exercise of their rights guaranteed in Section 7 of the Act by attempting to cause an employer to discharge employees for failing to pay union initiation fees and dues after the employees had resigned their membership in the Union and while the employees were paying to the Union monthly amounts equal to union dues. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed employees by Section 7 of the Act WE WILL rescind the processing of the internal union charges against Patricia Bowers, Patricia Fee, Mikelin McJunkin, Joellyn Trisler, and June Vercammen, and WE WILL remove from the Union's files and records all references to those charges and fines against them. WE WILL notify, in writing, Abdel M. Hafed, a sole proprietorship, d/b/a Dick's Restaurant, that the Union rescinds its request dated 8 September 1986 to discharge the above-named employees, and that the Union has no objection to their employment by the Employer so long as the employees continue to pay monthly to the Union amounts of money equivalent to union dues. 26 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 " HOTEL EMPLOYEES , RESTAURANT EM- PLOYEES AND BARTENDERS UNION, LOCAL 50, AFL-CIO