Mcdonnell-Douglas Corp., Local 148

970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Automobile, Aerospace and Agricultural Im- plement Workers of America, UAW, Local Union No. 148 (Douglas Aircraft Company, a Component of McDonnell-Douglas Corporation) and Edson R. Holmblad, Kenneth J. Florence, International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, UAW (Douglas Aircraft Company, a Component of McDonnell-Douglas Corporation) and Kenneth J. Florence and C. T. Griffiths. Cases 21-CB-8654, 21-CB-8783, 21-CB-8782, and 21-CB-9010 September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On December 23, 1987, Administrative Law Judge William L. Schmidt issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On August 12, 1988 , the parties filed a joint motion for approval of partial settlement agreement settling all aspects of this case except for the com- plaint allegation that article 6, section 17 of the UAW constitution' is overly restrictive and in vio- lation of the Act.2 On September 9, 1988, the Board approved the partial settlement agreement. Art. 6, sec 17 of the UAW constitution provides that s The settlement agreement provided, inter alia, that the Respondents would cease and desist from ( 1) requiring employees subject to the union- security agreement contained in the collective-bargaining agreement to pay retroactive dues or fees for periods of time occurring prior to the execution of the union-security agreement; (2) violating the February 9, 1984 strike settlement agreement by encouraging members to file miscon- duct charges against nonstrikers or by permitting their agents to file or process charges against members or former members for misconduct re- lated to the 1983-1984 strike, and (3) further processing charges against nonstrikers filed after the conclusion of the strike on February 9, 1984. The settlement agreement also ordered the Respondents to give effect to all membership resignations received from UAW Local 148 members, on or after September 12, 1983 ; refund all dues and reinstatement fees paid by nonstriking employees of McDonnell-Douglas Corporation for the months of November and December 1983 and January 1984, with interest as specified by law; rescind fines and suspensions imposed on nonstriking employees and refund to them any money they may have paid as a result of such fines, and post a notice. A member may resign or terminate membership only if s/he is in good standing, is not in arrears or delinquent in the payment of any dues or other financial obligation to the [UAW] or her/his Local Union and there are no charges filed and pending against her/him. Such resignation or termination shall be effective only if by written communication , signed by the member and sent by registered or cer- tified mail, return receipt requested, to the Financial Secretary of the Local Union within the ten ( 10) day period prior to the end of the fiscal year of the Local Union as fixed by this Constitution , where- upon it shall become effective sixty (60) days after the end of such fiscal year; provided, that if the employer of such member has been authorized either by such member individually or by the Collective- bargaining Agreement between the employer and the Union to The judge found that article 6, section 17 of the UAW's constitution was overly restrictive and that the Respondents violated Section 8(b)(1)(A) of the Act by maintaining and giving effect to the article. The Respondents except to the judge's decision, as- serting that because the constitutional provision can be enforced only through internal disciplinary measures such as suspension from union member- ship, and not by the imposition of monetary fines, 3 it is an internal union rule that is lawful under Sco- field v. NLRB, 394 U.S. 423 (1969).4 We find no merit in the Respondents' assertion. It is settled law that any restrictions placed by a union on its members' right to resign are unlawful, irrespective of the period of restriction, and that the maintenance of such a constitutional provision restrains and coerces employees from exercising their Section 7 rights. Sheet Metal Workers Local 73 (Safe Air), 274 NLRB 374 (1985), affd. 840 F.2d 501 (7th Cir. 1988); Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), approved by the Supreme Court in Pattern Makers League v. NLRB, 473 U.S. 95, 103 (1985). Furthermore, it is settled that such restrictions are invalid even where the constitutional provision can be enforced only through union discipline such as suspension and not by the imposition of monetary fines. Auto Workers Local 449 (National Metalcrafters), 283 NLRB 182 (1987), affd. 865 F.2d 791 (6th Cir. 1989).5 Because the Respondents in this case have maintained a pro- vision restricting the submission of resignations, we find that they have violated Section 8(b)(1)(A) of the Act and we will order that they expunge the check off the membership dues of such member , then such resigna- tion shall become effective upon the effective termination of such au- thorization, or upon the expiration of such sixty (60) day period, whichever is later ' While the judge concluded that the record failed to support a finding that the International's constitution does not permit the imposition of fines to enforce membership discipline, we note that when we approved the parties' partial settlement agreement, we also allowed for the record to be reopened to take into evidence rulings by Respondents ' Internation- al executive board, issued after the judge's decision, overruling Respond- ent Local 148's decision to fine members violating art . 6, sec 17 The International executive board's decision clearly states that the Interna- tional's constitution does not allow the imposition of fines to enforce art. 6, sec. 17. 4 The Respondents also except to the judge's finding of an agency rela- tionship between the International and Local 148 and their respective of- ficers and officials. We find it unnecessary to address the agency issue because it has no bearing on the only issue before us-the legality of art. 6, sec. 17 Both the Respondent International and Respondent Local 148 have maintained art 6, sec. 17 as shown by the fact that the provision is in the International's constitution and has been adopted by Local 148 pursuant to its bylaws. ' See also Food & Commercial Workers Local 81 (MacDonald Meat), 284 NLRB 1084 (1987). In that case the Board found that the provision in the union's bylaw, which restricted resignations from union member- ship, was unlawful Id 296 NLRB No. 125 AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) offending provision from their governing docu- ments. 6 We find no merit in the Respondents' assertion that expunction of the entire provision is inappro- priate because portions of that provision may be lawful. We agree with the Sixth Circuit in Auto Workers v. NLRB, 865 F.2d 791, 796-797 (1989), which found that article 6, section 17 violates Sec- tion 8(b)(1)(A) insofar as it permits resignation only if a member "is in good standing, is not in arrears or delinquent in the payment of dues of other fi- nancial obligation and there are no charges filed and pending against her/him." The provision that resignation is effective only if sent by registered or certified mail within 10 days prior to the end of the fiscal year of the local union also violates the Act. As the court stated , "these restrictions serve no le- gitimate purpose ; they only make it difficult for a member to exercise the right to withdraw from the union." The court further found, and we agree, that the requirement that a member's resignation be in writ- ing and sent to a designated officer of the local union could not reasonably be construed as re- straining or coercing members in the exercise of their Section 7 rights, and in fact serve the legiti- mate purpose of enabling the union to maintain an accurate membership roll. Nevertheless , we will re- quire expunction of the entire provision because ar- ticle 6, section 17, with its various restrictions, was presented as a whole to the membership and it is not for the Board to rewrite constitutional lan- guage to bring it into conformity with the law. ORDER The Respondents, International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, and its Local 148, their officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining and giving effect to article 6, sec- tion 17 of the constitution of the International Union and enforcing that provision against any of its members. (b) In any like or related manner restraining or coercing employees of McDonnell-Douglas Corpo- ration in the exercise of rights guaranteed it by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Remove from the constitution of the Interna- tional Union and any other of the governing docu- ments of Local 148 and/or the International Union 971 in which it may appear , article 6, section 17, of the constitution of the International Union.7 (b) Post at their offices and meeting hall in Long Beach, California, copies of the attached notice marked "Appendix."e Copies of the notice, on forms provided by the Regional Director for Region 21 , after being signed by the Respondents' authorized representatives, shall be posted by the Respondents immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the no- tices are not altered , defaced, or covered by any other material. (c) Sign and return to the Regional Director suf- ficient copies of the notice for posting by McDon- nell-Douglas Corporation, if willing, at all places where notices to employees employed in the col- lective bargaining unit affected by this order are customarily posted. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have been taken to comply. 7 The expunction remedy in this case does not preclude UAW local unions located in Canada and serving Canadian nationals and industries, and over which the Board has no jurisdiction , from maintaining art 6, sec 17 in their local governing documents 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To 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 ordered us to post and abide by this notice. WE WILL NOT maintain and enforce article 6, section 17 of the UAW constitution or any other restrictions on the right of members to resign from membership in the UAW. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. 6 See Auto WorAers Local 73 (McDonnell Douglas), 282 NLRB 466 (1986), in which we ordered expunction of the same provision and in doing so elaborated on the reasoning of Neufeld, supra 972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL expunge article 6, section 17 of the UAW constitution from our governing documents. UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, LOCAL UNION No. 148 INTER- NATIONAL UNION, UNITED AUTOMO- BILE, AEROSPACE AND AGRICULTUR- AL IMPLEMENT WORKERS OF AMER- ICA, UAW Peter Tovar, Salvador Sanders, Neil Warheit, Samuel Reyes, Lawrence Song, Glen Schults, and James McDer- mott, Esqs., for the General Counsel. Robert Bush, Jay Roth, and Jesus Quinonez, Esqs. with David Sandoval (Taylor, Roth & Bush), of Los Angeles, California, for UAW Local 148. Robert Berghoff, Carmen Cibulskis, Jean Gregory, and Douglas Griffith, of UAW Local 148, pro se. Michael B. Nicholson, Asst. General Counsel, International Union, UAW, of Detroit, Michigan, for UAW. Robert Dohrman, D. William Heine, and Claude Cazzu- lino, Esqs. (Schwartz, Steinsapir, Dohrman & Sommers), of Los Angeles, California, for the UAW. Kenneth J. Florence, Millicent Sanchez, and Andrea Hoch, Esqs. with Pamela Walsh and Wendy Forrester (Swerd- low & Florence), of Beverly Hills, California, for Charging Parties Florence and Holmblad. DECISION STATEMENT OF THE CASE WILLIAM L. SCHMIDT, Administrative Law Judge. The charges in the above-numbered cases allege that United Automobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, and its Local 148 (UAW and Local 148 or Respondents) violated Section 8(b)(1)(A) of the National Labor Relations Act (Act).' On 17 March 1984, the Regional Director for Region 21 of the National Labor Relations Board (NLRB or Board) issued a complaint and notice of hearing in Case 21-CB- 8654 on behalf of the General Counsel of the Board al- leging Local 148 had engaged in, and was continuing to engage in, unfair labor practices defined in Section 8(b)(1)(A). After the subsequent, related charges were filed, all cases were consolidated with Case 21-CB-8654 and the complaint was amended to allege additional unfair labor practices defined in Section 8(b)(1)(A) by both the UAW and Local 148.2 Briefly summarized, the ' Sec 8(b)(1)(A) of the Act declares that it is an unfair labor practice for a labor organization to "restrain or coerce employees in the exer- cise of the rights guaranteed in Sec 7 Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein Sec 7 gives employees the right to engage in, or refrain from engaging in, union or other protected concerted activities 2 The consolidated amended complaint issued on 9 January 1985 Thereafter, the consolidated amended complaint was amended on 4 March and 22 July 1985 The operative pleading here is the 22 July con- solidated amended complaint (the complaint) as orally amended at the hearing complaint alleges that the UAW and Local 148 commit- ted unfair labor practices : (1) by disciplining employee- members for crossing a picket line to work during the course of a 1983- 1984 strike at a McDonnell-Douglas' Long Beach, California, facility;3 (2) by maintaining an unlawful restriction on membership resignations in their governing documents; (3) by publishing and distributing so-called " 1983 Scabs" lists during the course of the aforementioned strike; (4) by threatening certain employ- ees who had crossed the UAW's picket line during the strike; and (5) by threatening to seek the termination of nonstrikers who did not pay dues for the strike period. Respondents filed timely answers as required admitting some allegations but denying, in general, that they had engaged in any unfair labor practices. I heard this matter for 45 days between 4 August 1985, and 10 April 1986. Having carefully considered the record, the demeanor of the witnesses while testifying, and the parties' posthearing briefs, I make the following FINDINGS OF FACT 1. JURISDICTION Douglas Aircraft Company, a component of McDon- nell-Douglas Corporation (McDonnell-Douglas or Em- ployer) and a Maryland corporation, is engaged in the manufacture of aircraft and related products at various locations throughout the United States, including its fa- cility involved here at 3855 Lakewood Boulevard, Long Beach, California. McDonnell-Douglas annually sells and ships goods and products valued in excess of $50,000 di- rectly to customers located outside the State of Califor- nia. Accordingly, I find McDonnell- Douglas is an em- ployer engaged in commerce and a business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that it would effectuate the purposes of the Act for the Board to assert its jurisdiction over this labor dispute. II. RESPONDENTS' STATUS UAW and Local 148 are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. An Overview In 1983, four thousand plus hourly rated employees of McDonnell-Douglas, Long Beach, worked pursuant to the terms of a collective-bargaining agreement between the Employer and the employees' exclusive representa- tive, the UAW, which was scheduled to expire on 9 Oc- tober 1983.4 Negotiations for a successor agreement ' The word "nonstrikers" is used throughout this decision as a short- hand characterization of such individuals As used here, the term "non- striker" encompasses those who never participated in the strike at all as well as those who did strike but subsequently returned to work before the strike concluded 4 The complaint alleges and the General Counsel argues, that the UAW and Local 148 are joint representatives In its brief, the UAW as- serted that it is the sole representative of the unit employees involved here. The UAW's position is well taken The term "joint representative" Continued AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) began and continued through the summer and fall of that year without success. Before and during this negotiation period, deep ani- mosities existed among Local 148-an organization char- tered by the UAW which services McDonnell-Douglas employees-members who were active in local union politics. For a number of years preceding 1983, active Local 148 members aligned themselves in organized fac- tions known as "caucuses." In recent years there have been three major caucuses popularly known as RAP, TEAM, and UNITY. For a number of years prior to the Local 148 internal elections in 1981 , members of the TEAM caucus held the major offices in Local 148. In the 1981 election , the RAP slate of candidates headed by Robert Berghoff defeated the TEAM slate headed by C. T. Griffiths and the UNITY slate headed by Farrell Johnson. During the summer of 1983, C. T. Griffiths again emerged as a vocal opponent of the Local 148 policies expressed in the negotiations. In July, Griffiths prepared and distributed a handbill suggesting that Local 148 president Berghoffs principal interest in negotiations was to even an old score with McDonnell-Douglas resulting from the latter's discharge of Berghoff. 5 The handbill opposed any strike action because, in Griffiths' view, such action would only benefit Berghoffs ulterior mo- tives. Following the distribution of the handbill , Berghoff and Griffiths had a heated verbal encounter in the hall- way at the Local 148 meeting hall. This encounter was interrupted by Local 148 Vice President Carmen "Ski" Cibulskis who asked to speak with Griffiths in the vice president's office. When the two men retired to Cibuls- kis' office, a brief fight broke out immediately resulting in minor injuries to both. Afterward, Berghoff barred Griffiths' departure from the meeting hall and summoned the Long Beach police. Police officers questioned both men and offered to prepare complaints against both. Each demurred when informed that if one arrest was re- quested, both would be arrested. Griffiths' opposition to 1983 strike actions did not pre- vail. In the weeks preceding the expiration of the con- is a legal term of art In essence , any component party in a joint repre- sentative setting may bind all other representatives . That is not the case here Ultimately only the UAW has the authority to enter into a binding agreement Moreover, the original certification issued to the UAW-and not Local 148-as a consequence of the decision and direction of election in Douglas Aircraft Co. 54 NLRB 67 ( 1943). Subsequent cases reflect that the UAW's representative status here remained unaltered for the next 20 years as attempts were made to add certain categories to the basic pro- duction and maintenance unit See , e g, Douglas Aircraft Co, 143 NLRB 592 (1963), and Douglas Aircraft Co, 147 NLRB 920 ( 1964), including other unreported cases described therein . Additionally, the agreement which expired in 1983 and its successor specifically describe the UAW as the bargaining representative "acting through . . Local 148 .." And former Local 148 President Clarence Gregory alluded to the successor agreement as one made by the UAW In the absence of some compelling evidence-not present here-that the UAW's legal relationship vis-a-vis the unit involved here has been altered, the contention that the UAW and its Local 148 are joint representatives is unsupportable Instead, as Local 148's status is derived from a delegation of statutory and contrac- tual duties by the UAW, I find Local 148 is an agent of the UAW in the representation of employees in the McDonnell-Douglas bargaining unit Mine Workers (Garland Coal), 258 NLRB 56 (1981) 5 Apparently Berghoff was subsequently reinstated by an arbitrator 973 tract, the membership voted-reportedly overwhelming- ly-for a work stoppage if negotiations were not success- ful in procuring a satisfactory, successor agreement. In addition to the hourly paid employees at Long Beach, the UAW's McDonnell-Douglas unit encom- passes similar employees at Melbourne, Arkansas, and Tulsa, Oklahoma. When negotiations continued through mid-October 1983 without success, all three facilities were struck simultaneously on 17 October 1983. Day-to- day management of the California strike activities fell primarily on the shoulders of the officers and volunteer members of Local 148.6 However, a special assistant to UAW President Owen Bieber was present almost daily at the Local 148 office and meeting hall in Long Beach and officials of UAW Region 6 were involved in certain aspects of the strike activity. Ray Majerus, UAW secre- tary-treasurer, served as the Respondents' principal spokesperson during bargaining sessions, including the final session leading to the strike settlement concluded on 9 February 1984. A morass of bitterness as well as the complex issues presented here survived the 1983-1984 strike. The expla- nation lies, in part, in the breakdown of the strike soli- darity and the variety of reactions that breakdown pro- duced. At the strike's inception, worker participation was widespread; only a few unit employees ignored the strike call and remained at work. Some of the latter resigned their UAW membership soon after the strike began but most did not. No known membership resignation related to the 1983 strike occurred prior to the start of the strike. In November 1983, McDonnell-Douglas sent a written appeal to its striking employees to return to work which suggested that they could avoid UAW discipline for doing so by resigning their membership . A second stronger appeal was sent to the strikers by McDonnell- Douglas just prior to Christmas 1983 which included a preaddressed, form resignation letter, and promised attor- ney assistance to defend against any UAW disciplinary action related to their return to work.? In January 1984, Employer-financed attorneys met with nonstriking em- ployees to distribute form resignations. Prior to late December 1983 some membership resig- nations-not significant in number-were sent to Local 148. Substantial resignations resulted from the December and January Employer appeals and meetings. In some in- stances these resignations were mailed to the UAW and/or Local 148 by employees; i however, many were delivered to Local 148 by messenger and mailed to the UAW by the attorneys retained by McDonnell-Douglas to deal with that matter. Finally, in late January 1984, McDonnell-Douglas mailed a blunt warning to striking employees that they risked permanent replacement unless they returned to 6 The strike soon depleted Local 148's resources Among the econo- mies Local 148 took was the layoff of its paid clerical staff. Thereafter, volunteer members of Local 148 performed clerical duties and answered telephones at Local 148 offices For this purpose , the Employer retained the Swerdlow and Florence firm and its predecessor 974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work by 27 January. Apparently, this latter warning, coupled with the strike's duration, sparked a significant return-to-work movement and an added flow of member- ship resignations. Throughout the strike, both UAW and Local 148 offi- cials uniformly refused to honor the membership resigna- tions they received. Frequently, Local 148 officials-gen- erally its president, Robert Bergoff-advised employee- members during large meetings of strikers that all mem- bership resignations received were untimely under the UAW constitution and would be rejected. And in some early instances, Berghoff advised resigners in writing that their resignations were not accepted . His standard letter referred the resigning member to the restriction on resig- nations contained at article 6, section 17 of the UAW's constitution. That provision, adopted first in 1947 and substantially unchanged since then , provides: A member may resign or terminate membership only if s/he is in good standing, is not in arrears or delinquent in the payment of any dues or other fi- nancial obligation to the [UAW] or her/his Local Union the [UAW] or her/his Local Union and there are no charges filed and pending against her/him. Such resignation or termination shall be effective only if by written communication, signed by the member and sent by registered or certified mail, return receipt requested, to the Financial Secretary of the Local Union within the ten (10) day period prior to the end of the fiscal year of the Local Union as fixed by this Constitution, whereupon it shall become effective sixty (60) days after the end of such fiscal year; provided, that if the employer of such member has been authorized either by such member individually or by the Collective-bargain- ing Agreement between the employer and the Union to check off the membership dues of such member, then such resignation shall become effec- tive upon the effective termination of such authori- zation, or upon the expiration of such sixty (60) day period, whichever is later. Of the hundreds of membership resignations submitted by unit employees to the UAW and Local 148 during this strike, not even a single resignation was treated as effective by Local 148 or the UAW, including those few submitted during the 10-day window period . 8 No expla- nation exists for the uniform refusal to accept the resig- nations tendered by the employee-members here apart from a general reliance on article 6, section 17. In the second week of December 1983 Local 148 President Berghoff and Local 148 bargaining committee Chairman Douglas Griffith signed and distributed a doc- ument headed "SCABS Will Be Suspended & Fined." (See G.C. Exh. 5). The flyer warned that a decision had been made to file internal union charges against nonstrik- ing members and continued "Since the $ 100 limit on fines was removed from the [UAW] Constitution last May, we are now prepared to prosecute SCABS." The 8 The pertinent window period here would have been from 21 Decem- ber through 31 December 1983 as the Respondents' fiscal period coin- cides with the calendar year document also warns that the nonstrikers would be charged and would "then face a trial committee made up of Local 148 members." It further added that "[t]he Local Union Administration will serve as prosecutors " and would recommend that those convicted be fined and suspended . As for the fines, that document warns that if the Employer refused to collect them the Local would sue for their collection "in a court of law .." The document adds that "the Int'l Union has pledged their assistance."" This latter public assertion, a post-strike letter from Local 148 President Berghoff to UAW President Owen Bieber (see G.C. Exh. 7),10 the absence of denials by the UAW, and other conduct by the UAW described more fully below permit the infer- ence that, in general, internal union charges against the nonstrikers met with approval by the UAW. Beginning in December 1983 and continuing through the remainder of the strike, Bargaining Committee Chair- man Griffith filed formal internal union charges against employee-members who returned to work without regard to any extant resignations . By the end of the strike, Griffith had charged 465 individuals and stated openly to other employee-members that he intended to charge all others who engaged in strikebreaking. As these charges were filed, Local 148 sent a form notice of the filing to the charged individual . Apart from that ini- tial step, the charges were not immediately processed but, clearly, they remained pending. Local 148 officials also published a list of employees who crossed the picket line to work during the strike. Referred to commonly as the "1983 Scabs" list, the doc- ument contained the names and department numbers of those employees who did not join the strike or who had returned to work during the strike. In addition, the ad- dresses and telephone numbers of several nonstrikers were published on this list. The list was posted at Local 148's meeting hall and was disseminated in Air-Scoop, a monthly publication of Local 148. Some of those listed received anonymous, threatening phone calls and letters. A few reported acts of violence at or near their homes by unknown perpetrators. Local 148 officials disclaimed responsibility for these threatening actions. One employee reported to McDonnell -Douglas securi- ty officials that he had been threatened in a telephone en- counter with two Local 148 officials after he returned to work late in the strike. The threats-treated in more detail below-were denied by the officials identified. In another instance, one employee asserted that Berghoff 9 Berghoff testified that the charges filed by Douglas Griffith during the strike resulted from instructions by UAW representatives is In that 2 January 1985 letter, Berghoff acknowledged receipt of a telegram from Bieber stating that fines were not permitted under the UAW constitution "in this situation " presumably meaning against non- strikers. Berghoff protests that interpretation saying that the UAW McDonnell-Douglas Intra -Corporation Council-of which Berghoff was chairman-had been specifically instructed during the strike by an administrative assistant of Bieber to levy fines against nonstrikers. This letter inquires as to whether the 20 December telegram is a final interpre- tation under art 13 , sec 8 of the UAW constitution . That provision em- powers the UAW president to decide "disputes or questions in controver- sy" and describes appeal routes to the UAW executive board and the UAW convention. This exchange occurred after all of the poststrike charges were disposed of by Local 148 AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) solicited him to assault a nonstriker . Berghoff denied that he had done so. The strike was concluded on 9 February 1984 with the execution of a strike settlement agreement. Insofar as is pertinent here, that agreement provided that both sides would withdraw all legal actions related to the negotia- tions or the strike. Additionally, McDonnell-Douglas agreed to reinstate nine individuals discharged for strike misconduct; the Respondents agreed to drop all charges against employees-those filed by Griffith-for working during the strike; and both parties agreed to "discourage any third party actions alleging misconduct during the strike." The negotiations leading to the foregoing settle- ment terms focused, in the main, on the reinstatement of the discharged employees and the aforementioned charges filed by Griffith. Regardless, following the strike, no action was taken by Local 148 on the Griffith charges. However, during the hearing , Local 148 sent a written notice advising each person charged by Griffith that the charge against him/her had been withdrawn. This action was a quid pro quo for the General Coun- sel's withdrawal of a complaint allegation charging Local 148 with a breach of the strike settlement (see complaint par. 30) because no written notice of with- drawal had been provided to those charged by Griffith during the strike." On the afternoon of 9 February 1984 the Local 148 membership ratified the strike settlement agreement. Bar- gaining Committee Chairman Griffith addressed the throng of members-estimated by one witness to number in excess of 2000 persons-to describe the settlement terms. Berghoff was closeted in his office as the meeting began with representatives of McDonnell-Douglas crossing the "t's" and dotting the "i's" of the strike set- tlement documents. Agents of the Long Beach media were on hand to record the events for reporting to the public. Griffith, who had initially resisted the proposal for the withdrawal of the charges against the nonstrikers which he had filed, announced to the assembled members that, as one of the terms of the agreement, he would be drop- ping his charges. According to Griffith, the arena erupt- ed in a chorus of boos and catcalls lasting several min- utes before order was restored . Griffith then reported that the right of individual members to file charges against their fellow nonstriking employees had been per- served in the strike settlement . 12 Several witnesses claim that Griffith then announced that if any member needed assistance in filing charges against a nonstriker, he was available for that purpose . 13 Clarence Gregory, a former 11 A few nonstrikers who were again charged after the strike ended were plainly confused as to which charge-strike or post -strike-they were prosecuted under. "Actually, the agreement contains no language preserving the right of members to file charges against the nonstrikers but as will be seen below, there is agreement on both sides of the bargaining table that such was the case 1' Although not a lawyer, Griffith is naturally gifted with the skills and temperment of a lawyer In this hearing he cross-examined a signifi- cant number of witnesses, often demonstrating journeyman skills in this endeavor. In his position as bargaining committee chairman , he is respon- sible for presenting the Union 's case in arbitration proceedings. 975 president of Local 148, then a current district steward, chairman of Local 148's Community Action Committee, long a Local 148 activist, special advisor to Berghoff at all 1983-1984 bargaining sessions , and husband of the soon-to-be recording secretary of Local 148, told the massed assembly that the Local 148 executive board had obliged itself to discourage the filing of more charges but if they chose to ignore such discouragement he would act as counsel before the trial committee on their behalf. As for the provision requiring both sides to discourage future third party actions, a strained inference that this provision was discussed-grounded on nothing more than the fact that this was a ratification meeting where presumably all terms were announced-is all that is per- mitted on this record with respect to that particular, and highly pertinent, subject. Media interviews followed the meeting; several witnesses claim that they saw Griffith offer to assist members to file new charges against the nonstrikers on evening news programs. In the 2-month period following the conclusion of the strike, Local 148 members who held no office in either the Local 148 or the UAW charged nonstrikers with abandon . Altogether, more than 1200 employees were charged by 165 of their fellow workers. These charges were processed by Local 148 after a large number of ap- peals concerning the propriety of the charges were re- jected by the UAW and fines were imposed on those found guilty. The assessed fines were divided into two categories: (1) those who crossed the picket line prior to 4 January 1984 were fined $50 for each day worked; (2) those crossing after 4 January were fined $100.14 McDonnell-Douglas protested that Local 148 action on these charges breached the strike settlement but Local 148, relying on the background negotiations for the strike settlement, hotly disputes this charge. In early March 1984 Local 148 sent a written notice to those who worked during the strike that they were ex- pected to remit the constitutionally mandated dues-2 hour's pay-for the months of November, December, and January. In August 1984, Local 148's publication "Air-Scoop" carried an article concerning the dues matter which also threatened employees with the possibility of discharge for failing to pay dues for the strike period pursuant to the union security provision in the collective- bargaining agreement. In November 1984, Local 148 sent a "final notice" regarding dues for these months and again called attention to the discharge penalty in the ex- isting union-security clause of the collective-bargaining agreement. In the meantime, Local 148 elections were scheduled for May 1984. Under the UAW constitution, those not in good standing-including those shown with an arrearage of dues and those against whom internal union charges are pending-are not eligible to vote. 14 Local 148 trial committees empaneled to hear and judge the evi- dence against the nonstrikers imposed a membership suspension penalty only At subsequent membership meetings where such penalties are re- ported and reviewed, motions were made by officers and stewards of Local 148 to substitute this monetary fine scheme in place of the suspen- sion penalty . Those motions carried without fail 976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Apparently fearing that the flood of poststrike charges and the claim for strike-period dues would disenfranchise many of his likely supporters , C. T. Griffiths and some of his close supporters circulated a petition in late Febru- ary and early March 1984 seeking to have the UAW es- tablish an administratorship over Local 148. Among other things, the petition claimed the Local 148 adminis- tration was violating the requirement in the strike settle- ment to discourage the filing of new charges . Although the UAW declined to establish an administratorship, ap- parently an agreement was reached that those who paid dues for the strike months would be permitted to vote. In early April 1984 the UAW sent a letter so notifying the Local 148 membership and subsequently posted an international representative inside the plant gate to col- lect back dues for the strike months. The UAW's letter neither made reference to the Local 148 March letter on this subject nor the union-security agreement. In early March 1984 bargaining committee chairman Griffith charged C. T. Griffiths with conduct unbecom- ing a UAW member. The essence of the charge against Griffiths was that he had undermined the strike by coun- seling employees to return to work. Ultimately, Griffiths was found guilty of the charge, was suspended from membership, and was removed from his post as a Local 148 district steward-a position which is accorded argu- ably lawful superseniority under the collective-bargain- ing agreement between McDonnell-Douglas and the UAW.15 C. T. Griffiths appealed his conviction to the UAW. After it was considered , the appeal was denied. Based on the record made herein I find there is ample evidence to conclude the following individuals occupied the positions opposite their names and were agents of the UAW and Local 148-as designated-at relevant times: Owen Bieber-UAW President Raymond Majerus-UAW Secretary-Treasurer Robert Berghoff-Local 148 President Carmen "Ski" Cibulskis-Local 148 Vice Presi- dent Tony Gutierrez-Local 148 Financial Secretary Mona Hart-Local 148 Recording Secretary until March 1983 Jean Gregory-Local 148 Recording Secretary beginning in March 1983 Douglas Griffith-Chairman, Local 148 Bargain- ing Committee Glen Plunkett-Co-Chairman, Local 148 Bar- gaining Committee Noel Belanger-Local 148 Executive Board Member Toby Sturgis-Local 148 Trustee and Insurance Representative Clarence Gregory-Chairman , Local 148 Stew- ard Council and District Steward B. Specific Complaint Allegations 1. The constitutional resignation restriction a. Pleadings and evidence The complaint alleges that Respondents violated Sec- tion 8(b)(1)(A) of the Act by maintaining art. 6, sec. 17 of their constitution in effect since at least 12 September 1983. That provision limits the right of UAW members to resign as specified above. The UAW admitted that it maintained the provision in effect as alleged but denied that it violated Section 8(b)(1)(A) by doing so. In con- nection with this allegation the UAW affirmatively pleads that Section 10(b) and the doctrine of laches bars the prosecution of this allegation and that an adverse finding is precluded by the doctrine of res judicata and collateral estoppel. Complaint paragraph 32 alleges that Respondents vio- lated Section 8(b)(1)(A) because they failed and refused to give effect to any attempted membership resignation during the 1983-1984 strike. Respondents denied that al- legation also. As noted above, Local 148 officials repeatedly stated to large gatherings of employee-members that resigna- tions would not be honored because of the constitutional restriction alleged as unlawful here . And a substantial number of employees who submitted written resignations during the strike were informed by Berghoff in writing that their resignation would not be honored because of the constitutional restriction. b. Argument The General Counsel argues that article 6, section 17 is unlawful for two reasons . First, in two cases preceding the more recent resignation restriction cases the Board concluded that fines levied against nonstrikers who sub- mitted untimely resignations under article 6, section 17 were unlawful. See Auto Workers Local 647 (General Electric Co.), 197 NLRB 608 (1972), and Auto Workers Local 1384 (Ex-Cello Corp.), 219 NLRB 729 (1975).16 Those cases hold that the UAW's annual 10-day resigna- tion window period and the delayed effectiveness of res- ignation submitted in that period constituted an unrea- sonable restriction on employee Section 7 rights. Second, in more recent cases the Board has held that any restric- tion, including the maintenance of a restriction, on a union member's right to resign violates Section 8(a)(1)(A). See Machinists Local 1414 (Neufeld Porsche- Audi), 270 NLRB 1330 (1984); Typographical Union (Reg- ister Publishing Co.), 270 NLRB 1386 (1984); and Engi- neers and Scientists Guild (Lockheed-California), 268 NLRB 311 (1983). With this background of litigation and precedent, the General Counsel asserts that the "mere maintenance" of article 6 , section 17 is plainly unlaw- ful. 17 15 Local 148 bylaws art 8, sec 1(c) (Stip Exh F, p. 9) suggests that membership in good standing is a prerequisite for the district steward's post . In November 1984 a Local 148 election official declared C T Grif- fiths ineligible to run for the district post because he was not a member in good standing See G C Exh . 103(s) Contractual superseniority is re- flected in art. VII, sec 2(h) of ( Step. Exh 2-A p 49) 16 The Board reached a similar conclusion in at least one other case involving a local of the UAW. Auto Workers Local 469 (Master Lock Co.), 221 NLRB 748 (1975). 17 Since the parties' briefs were filed in this case, the Board has again held article 6, section 17 unlawful in three UAW cases based on the Neu- Continued AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) Charging Party Florence advances similar arguments and cites additional precedent . However, Charging Party Florence also contends that the other limitations in arti- cle 6, section 17 unrelated to time, such as those require- ments that resignations be written and signed by the member, and sent by registered or certified mail, return receipt requested, to the local union financial secretary also render the provision invalid under Board holdings prohibiting any restriction on membership resignations. As for its affirmative defenses, the UAW argues that Section 10(b) and the doctrine of laches precludes the Board from acting against the mere maintenance of arti- cle 6, section 17 which was first adopted nearly 39 years ago. This is especially true, it asserts , where the Board has tolerated the existence of article 6, section 17 not- withstanding litigation over the past 20 years concerning its legality . Moreover, the UAW contends that the Board is barred by the doctrine of res judicata and collateral es- toppel from finding article 6, section 17 unlawful in light of a 1963 First Circuit decision finding the provision was not unlawful. See NLRB v. Auto Workers (John L Pauld- ing Inc.), 320 F.2d 12 (1st Cir. 1963). Additionally, the UAW contends that article 6, section 17 is lawful notwithstanding the contrary precedent mar- shalled by the General Counsel and the Charging Party because it is an "internal" union rule protected by the 8(b)(1)(A) proviso.18 The fundamental premise of the UAW's argument is that as its constitution does not au- thorize the use of monetary fines as an enforcement mechanism, there can be no unlawful restraint or coer- cion within the meaning of Section 8(b)(1)(A) by main- taining a membership resignation limitation in its consti- tution. 19 In support of this premise, the UAW asserts that the Supreme Court's Pattern Makers decision20 merely holds that fines used to advance a union prohibi- tion against strikebreaking where members are not free to escape the penalty by resigning represents a form of "external enforcement" found unlawful in its earlier Allis- Chalmers decision.21 The UAW claims other forms of union "internal" union discipline such as reprimand, and suspension or expulsion are unaffected by the Pattern Makers' decision. Accordingly, as the UAW constitution does not authorize the imposition of fines to enforce con- stitutionally mandated union discipline, the maintenance of its article 6, section 17 membership resignation limita- feld Porsche-Audi rationale Those cases are Auto Workers Local 449 (Na- tional Metalcrafters), 283 NLRB 182 (1987), Auto Workers Local 848 (LTV Aerospace), 282 NLRB 946 ( 1987), and Auto Workers Local 73 (McDonnell Douglas), 282 NLRB 466 (1986) is However, the UAW's brief concedes that in pending litigation this argument has, thus far, been unsuccessful 19 As noted above, Local 148's membership ultimately imposed fines against all those charged and found guilty of working during the 1983- 1984 strike without regard to whether they had resigned from member- ship At the hearing, the UAW moved to defer closing the record and filing a decision because appeals related to the imposition of fines had been filed with the UAW executive board As its executive board had not yet ruled on those appeals, the UAW asserted that the record was not ripe for final determination . That motion was denied . The UAW renewed that motion in its brief The renewed motion is likewise denied To hold otherwise would violate the principle that employees need not exhaust in- ternal union remedies before seeking statutory relief. 20 Pattern Makers v. NLRB, 473 U.S. 95 (1985) Si NLRB Y Allis-Chalmers Mfg Co., 388 U S. 175 (1967) 977 tions cannot be deemed unlawful in light of the proviso to Section 8(b)(1)(A).22 Local 148 adopted the arguments advanced by the UAW concerning this issue. b. Further findings and conclusions I find that the UAW's affirmative defenses lack merit. This is not a situation involving an untimely filed charge or delayed litigation . Instead this issue is presented now because case law has slowly evolved over the past 25 years leading the Board to conclude in Neufeld Porsche- Audi that indeed, any restrictions placed by a union on its members' right to resign . . . are unlawful." Noting the Board's decision in Neufeld Porsche-Audi, the Su- preme Court essentially concurred in the reasonableness of the Board's conclusion saying : "We believe that the inconsistency between union restrictions on the right to resign and the policy of voluntary unionism supports the Board's conclusion that [the Pattern Makers restriction on its members' right to resign their membership] is in- valid." Pattern Makers v. NLRB, supra. In their respective decisions, both the Supreme Court in Pattern Makers' and the Board in Neufeld Porsche-Audi trace in detail the legislative and litigational history lead- ing to their landmark conclusions . It would be redundant to repeat that compendium here or in subsequent cases. It suffices to say that the historical treatment in those two decisions reflects unsettled and evolving questions of law characteristic of the Anglo-American system . Hence, the doctrines of finality underlying each of the UAW's affirmative defenses are simply inapposite to the circum- stances presented here. Montana v. U.S., 440 U.S. 147 (1979). This is true notwithstanding the 1963 First Cir- cuit decision in NLRB v. UA W which fundamentally ap- proved the resignation restriction at issue here. The great bulk of the decisional history detailed by the Supreme Court and the Board alluded to above followed the First Circuit's decision. That alone undermines the application of the doctrine of collateral estoppel which might other- wise apply in the absence of the intervening litigation. And although a decisional basis existed for the conclu- sion that article 6, section 17 is unlawful more than 6 months prior to the filing of theses charges, the fact re- mains that the UAW continued to maintain that provi- sion of its constitution in effect . Here the General Coun- sel attacks the maintenance of the provision only for that period preceding the filing of the earliest consolidated charge by 6 months. As the continued maintenance of the provision is a continuing violation , the General Counsel's complaint is not precluded by the 6-month lim- itation period in Section 10(b) of the Act. Sheet Metal Workers Local 73, 274 NLRB 374 (1985). Therefore, I reject the affirmative allegations advanced by the UAW in defense of article 6, section 17. There being no merit to the UAW's affirmative de- fenses, I further conclude that the maintenance of article 6, section 17 is unlawful as alleged . This conclusion is 22 UAW's counsel asserts that its constitution was amended in 1983 to eliminate fines as a penalty for breaches of union discipline and that repri- mands, and suspension or expulsion from membership are the only forms of penalty authorized under its constitution 978 DECISIONS OF THE , NATIONAL LABOR RELATIONS BOARD compelled by the above-cited precedent. See Auto Work- ers Local 449, supra; Auto Workers Local 848, supra; and Auto Workers Local 73, supra. I further find that because Respondents were giving effect to article 6, section 17, they refused to honor any membership resignations re- ceived during the 1983-1984 strike at McDonnell-Doug- las as alleged . By that refusal Respondents further violat- ed Section 8(b)(1)(A) of the Act. Auto Workers Local 848, supra. The plain, unmistakable effect of the precedent cannot be evaded by the claim made by the UAW here that the provision is proviso protected as an internal rule because its constitution does not specifically authorize the imposi- tion of fines. Standing alone, that fact , if it is a fact, is at best ambiguous. Thus, Bergoff and Griffith suggested in their December 1983 warning notice (G.C. Exh. 5) that the 1983 constitutional action concerning fines was merely the removal of a $100 limitation so that unlimited fines could now be imposed . And they asserted without contradiction that the UAW had pledged assistance to collect fines. Moreover, within the circumstances here, it would be unreasonable to find that the absence of specific author- ity to fine members insulates the UAW's conduct in this case. Everyone charged and found guilty of strikebreak- ing was fined by Local 148 membership . This presents a serious factual question about the claim that the UAW constitution does not permit the imposition of fines as claimed by counsel . Insofar as is known all of the trial committees which dealt with the poststrike charges here imposed suspensions. That penalty is consistent with arti- cle 31, section 10 of the UAW constitution (Stip. Exh. B) which limits trial committees' penalty powers to repr- mand, or suspension or removal from office or member- ship. Article 31, section 11, however, authorizes the mem- bership to review the findings and penalties of trial com- mittees and to modify either. Article 31 , section 11 con- tains no limitation on the penalty power of the member- ship. This omission is particularly noteworthy here as the penalty aspect of every trial committee-and there were several-was modified by the membership to substitute the fine schedule for the suspension imposed by the trial committees. Membership minutes in evidence reflect that this action came about in at least two instances as a result of motions made at membership meetings by Clar- ence Gregory and Mona Hart, both former officers of Local 148 and, presumably, knowledgeable members. If Hart and Gregory labored under some misapprehension, they are not alone . As the decision in Auto Workers UA W Locals 73 and 1093, reflects, fines were imposed in that case for strikebreaking activities in March 1984. By contrast, article 37, section 5 provides clearly for a "non- monetary" penalty in situations related to the failure of officers to attend meetings. In light of these circumstances, and in the absence of straightforward testimony of any responsible internation- al official concerning the effect of the May 1983 amend- ments to the UAW's constitution, I find there is insuffi- cient proof on this record to conclude that the UAW constitution no longer permits the imposition of fines to enforce membership discipline. This is true notwithstand- ing the content of Berghoff's January 1985 letter to Bieber as it suggests a significant dispute concerning the constitutional authority to impose fines . Assertions of counsel-especially in the circumstances found here- cannot be treated as proof of fact. Accordingly, as there is no evidence that fines may no longer be imposed to enforce membership discipline, it is unnecessary to fur- ther consider the UAW's claim that article 6, section 17 is an internal rule protected by the proviso to Section 8(b)(1)(A) of the Act. 2. The strike settlement agreement issue a. The pleadings The complaint alleges that McDonnell-Douglas and the Respondents' entered into a strike settlement agree- ment on 9 February 1984 providing that : ( 1) McDonnell- Douglas would reinstate all employees discharged for strike misconduct; (2) the Respondents would drop all charges against its members for working during the strike; and (3) both parties would discourage any third party action alleging misconduct during the strike. The complaint further alleges that specific officers of Local 148 engaged in certain conduct following the strike set- tlement agreement which "encouraged and incited em- ployee-members of Respondents' labor organization to file [internal union] charges against [those members who worked during the strike] in contravention of [the strike settlement agreement]." In addition, the complaint al- leges that the poststrike charges filed against C . T. Grif- fiths also contravened the strike settlement agreement. Because officers of Local 148 violated the strike settle- ment in this manner, the complaint alleges that the Re- spondents are precluded from "ratifying those charges, fines and penalties" which were assessed against the em- ployees who worked during the strike and C. T. Grif- fiths, and that by doing so, Respondents violated Section 8(b)(1)(A) of the Act. Respondents' answers denied that they entered into the strike settlement agreement containing the language al- leged in the complaint or that they breached the terms of the relevant strike settlement as alleged by the General Counsel. b. The evidence In early February, the Respondents notified McDon- nell-Douglas of their decision to abandon the strike and to return to work. This action led to negotiations for an orderly return of the striking employees. An agreement encompassing the terms of that return was concluded on 9 February 1984 and was ratified at a meeting of mem- bers held that afternoon. The portion of the strike settlement relevant to the issues being treated here-hereafter the amnesty provi- sion-provides specifically as follows: All legal actions taken by either party related to negotiations or the strike will be withdrawn. The Company agrees to reinstate all employees discharged for strike related misconduct. AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) The Union agrees to drop all charges made against Union employees for working during the strike. Both parties agree to discourage any third party actions alleging misconduct during the strike. Everyone agrees that the Respondents were commit- ted to dropping all of the presettlement internal union charges which Douglas Griffith had filed against the nonstrikers . At the time, Respondents simply did nothing with those charges apparently on the belief that by doing nothing they complied with the requirement that they "drop all charges made against union employees for working during the strike." However, paragraph 30 of the 9 January 1985 amended consolidated complaint al- leged that Respondents "failed and refused . . . to drop charges made against 'Union employees' for working during the strike, in contravention of [the strike settle- ment agreement]." The General Counsel repeatedly explained during the hearing that complaint paragraph 30 pertained to the Griffith presettlement charges . The General Counsel be- lieved Respondents had an affirmative duty under the strike settlement to notify the charged employees in writ- ing that the charges had been dropped. Respondents denied that they had assumed such a duty. However, the General Counsel and the Respondents reached an accord in the course of the hearing on this point. Essentially, that accord provided that the Respondents would so notify the charged employees that the Griffith-filed charges had been dropped and that the General Counsel would move to amend the complaint by deleting para- graph 30. When the General Counsel so moved on 21 January 1986 and the Respondents represented that they were in the process of notifying the charged employees, I granted the motion to delete complaint paragraph 30. The negotiations on 9 February leading to the inclu- sion of the amnesty provision shed light on subsequent actions and provide background for the dispute here. The testimony of the Employer's negotiator, Douglas In- gebretsen, concerning the background bargaining of the amnesty provision and its overall purpose went as fol- lows: z a 23 1 credit and place significant reliance on this quoted testimony by Ingebretsen which is substantiated by the Employer's contemporaneous notes in evidence . Seemingly, the Respondents chose to rely on Douglas Griffith's testimony to explain the background negotiations leading to the strike settlement agreement . In agreement with the General Counsel, I find Griffith's testimony unreliable . Griffith claimed the "third party" language in the amnesty provision related only to civil actions , not inter- nal union charges All matters pertaining to the handling of poststrike in- ternal union charges where , according to Griffith , verbal understandings exchanged between negotiators I find that claim highly improbable in the circumstances presented here. Moreover, in light of his reluctance to withdraw his own charges and his subsequent conduct at the ratification meeting and before television cameras as reported by a number of wit- nesses, I have concluded that Griffith's testimony was essentially self- serving, designed to justify his poststrike conduct . Local 148 president Berghoff who impressed me as a forthright witness overall testified that he had no recollection of the discussion in the negotiations concerning the requirement to discourage third party actions and , consequently, he contemplated striking that language from the strike settlement document presented to him for signature at the very moment the ratification meet- ing was in progress in the adjacent meeting hall . Clarence Gregory obvi- 979 Q. [I] would like you to tell me, Mr. Ingebretsen, what was the discussion at this settlement meeting that led to the inclusion of strike settlement agree- ment? A. Both parties were attempting to reach a con- clusion to what had been a long and difficult strike, and we were attempting-and certainly, the Com- pany's position was that we did not want to move that strike and its animosity and hostility inside of the plant. We were trying to reach an agreement that would minimize that action , and the Union had made a request that we reinstate employees who had been terminated for what we felt were inappro- priate actions in the course of that strike. In agreeing to that, we wanted to remove all ani- mosity and hostilities, if possible, between the par- ties. Q. So then, what was the Company's proposal in order to achieve that goal? A. As it is memorialized here in the strike settle- ment agreement that is basically what we reached agreement on. Q. And what was that? What was the Company's proposal? What did the Company want the Union to do? A. To drop all charges, Board actions, or other actions in fact, both parties were to drop all of those actions that had occurred during the course of the strike between the parties. Q. And what was the Union's response to that proposal? A. There was agreement to that, eventually; it was a long and prolonged negotiation session. But I believe that there was consensus , and that consensus was what we put in the strike settlment agreement. Q. Was there discussions with regards to the filing of future charges? A. There was an indication that under the constitu- tion of the UAW, that individual employees could bring action against other members of the Union. We acknowledged that,' I was familiar with that, but asked that both parties discourage all third parties from taking future actions. Q. And what was the Union's response to your request? A. There was, I think, general agreement to that, with the proviso that I mentioned. Q. Was there any discussion with regard to the Union filing any future charges? A. There was agreement that the Union would drop the charges. There was-I don't recall any ously recalled the discussion of this matter during negotiations as he al- luded to it in his remarks to the members at the ratification meeting but his testimony otherwise is void of significant detail Majerus, the UAW's chief negotiator , did not testify at all, a fact so stunning under the cir- cumstances that I feel compelled to conclude that had Majerus testified, his testimony would not have differed from Ingebretsen's testimony to any significant degree Ingebretsen's testimony is pertinent to understand- ing the correct interpretation of the strike settlement and is not relied upon to vary its terms Inter-Lakes Engineering Co, 217 NLRB 148 (1975). 980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD specific discussion beyond that which I mentioned, the right of other employees to file actions. Q. And with respect to any subsequent charges of misconduct against those individuals who crossed the picket line during the strike in 1983, that this settlement agreement didn't apply to any subsequent third party charges that might be brought against these individuals, is that correct? A. We dealt with the charges and actions that were filed at the time, with the understanding that we were going to cease all the hostilities between the parties. Q. Okay. Your understanding is that the goal of the parties was to cease the hostilities, is that cor- rect? A. That is correct; put the strike behind us. Q. But that with respect to any third party ac- tions that might be brought subsequent to the sign- ing of the settlement agreement, the Union made it clear that they were constitutionally required to process those charges, isn't that correct? A. They did. We agreed that both parties would attempt to discourage those, however. Q. Directing your attention to that clause in the settlement agreement that says that both parties agree to discourage any third party actions alleging misconduct during the strike, was it your under- standing that the parties would discourage the filing of charges by individuals against other individuals? MR. QUINONEZ: Objection, Your Honor. Irrele- vant, what his understanding was. JUDGE SCHMIDT: Overruled. THE WITNESS: Yes, that was my understanding. BY MR . TOVAR: Q. And would those be charges only with re- gards to crossing the picket line and going back to work, or were they charges with regards to any strike related activity? MR. QUINONEZ: Objection JUDGE SCHMIDT: Overruled. The Witness: We were trying to remove all of the hostilities, and we had temporary restraining order. We had court cases; we had Board actions; we had some knowledge of charges filed against in- dividuals. We were trying to end all of the hostil- ities. BY MR. TOVAR: Q. So, that would include any charges relating from strike related misconduct alleged- MR. QUINONEZ: Objection. Leading, Your Honor. JUDGE SCHMIDT: Overruled. THE WITNESS: That would be my understanding, yes. [Emphasis added.] Subsequently as a rebuttal witness Ingebretsen testified as follows: they were filed by individual members, isn't that correct? A. I did not know what would be done with the charges, but as I say, I have been reminded of the Constitution, that obligated or that gave the right to individuals to file. Q. Did the Union ever say to you during negotia- tions that they were going to let individual mem- bers file charges and then just let them go to the wayside-once they were filed? A. My only recollection of that was a comment made by Mr. Majerus that these charges would all have to be processed through the International and his comment was "We'll take care of them." Q. And, that was your understanding, that the charges were going to be processed, is that correct? A. That was my understanding that the parties would agree to discourage the filing of those and that they would be "taken care of," was Mr. Ma- jerus' only comment that I can specifically recall. As noted, Douglas Griffith, the Respondent's principal witness concerning the negotiation of the strike settle- ment, testified that the discouragement language of the settlement referred only to civil actions rather than the internal union charges . According to Griffith, the Re- spondents' pledge to discourage the internal union charges was done orally and was not memorialized in writing. Griffith asserted in effect that the use of the words "Both parties" makes no sense otherwise as the Company would not be involved with internal union charges at all. Notwithstanding the final terms of the strike settle- ment, 1235 individuals were charged with strikebreaking activities in the 2-month period following the end of the strike. Additionally, Douglas Griffith charged C. T. Griffiths with encouraging employees to quit the strike and return to work. As the charges streamed into Local 148, its officials served copies of the charges on the charged employees followed by notices concerning the selection of trial committees, scheduling of trials, postponement of trials, the filing of appeals to the UAW executive board and the UAW Public Review Board, the results of trials, and the imposition of fines and penalties. C. T. Griffiths was tried separately, found guilty, suspended from member- ship and stripped of his district steward position.24 His appeal to the UAW was denied primarily on the ground that he had failed to appear at his trial to defend himself. The gravaman of the General Counsel's complaint is that Local 148 officials encouraged and abetted the post- strike charges in violation of the strike settlement com- mitment to "discourage any third party actions alleging misconduct during the strike." The conduct of Local 148 officials upon which the General Counsel relies commenced as the ink was drying on the strike settlement agreement. At the ratification meeting on the afternoon of 9 February 1984, Douglas Q. It was also your understanding that the Local Union was going to process [post-strike] charges, if 24 Although dated 9 March, the charge against C T. Griffiths was not served upon him until the last week of March 1984 AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) Griffith explained the terms of the strike settlement as follows: Q. And, what did you say [about the agreement to withdraw the charges filed during the strike]? A. I prefaced it by pointing out that we had 9 brothers who had been fired during the strike and that we should have made a pledge to the member- ship at the beginning that no member of that Local Union would lose their jobs as a result of that strike and to keep that pledge, that I would have to-that I had agreed to withdraw my personal charges that I had filed against the "scabs" down through those months of the strike . The membership-they were very loud and rowdy about that, you know-no- boo-scream-holler. They began hollering ques- tions about-Can we file-I want to file-questions going to whether the "scabs" could, in fact, be charged by them-when-how-who-whether I would give them a list of everybody who had crossed the picket line? What was called "scab list" and- Q. What did you say? A. I explained to them-it took probably 20 min- utes to get them quieted down-explaining to them that it was only my personal charges being with- drawn, that their rights, individual rights as mem- bers to file were absolutely protected in the agree- ment. That we had not only informed the Company that they would file charges-that the members would be filing charges-but that we had told the Company and the Company understood that we would help them, if they needed to know how to do it. I also made the point, I said, "Look, this has been a long bitter strike and we need to get it put behind us." I about got booed off the stage-they don't want to hear that . But we had told the Com- pany-I told Ingebretsen , personally, across the table, that when people came to us about how to file charges, we would tell them how to do that. That it was our obligation-a fair representation, and that we would tell them what the constitution provided and how to do that. Because they would not know . We told these people that, I did, and they finally understood . They didn't like it much, they had blood in their eyes and nearly every de- partment that you could look at in that plant, there were groups of strikers who were doing that, you know, filing charges. According to Griffith, immediately following the strike Local 148 officials were "just bombarded with people wanting to know how to [file charges against nonstrikers.]" C. T. Griffiths summarized the Griffith statements at the ratification meeting as follows: [Griffith said] that as a part of the settlement he had agreed to drop all of his charges but that . . . any rank and file member could file and he could be glad to assist them and show them how. 981 During the course of the ratification meeting, Clarence Gregory addressed the assembled crowd from the floor and offered his services as counsel if anyone chose to file a charge. Gregory provided the following testimony concerning his remarks at that time: A. I wanted the people to understand the obliga- tions that the Local Union had-you know the offi- cers-to discourage the filing and that I felt the same way-that I was not an officer, but I had been there and participate [sic], but if people chose to ignore that participated , but if people chose to ignore that discouragement and file charges then in order to expedite the procedures and minimize the costs that I would volunteer my services to act as Counsel. Q. And, you said all of those things to them? A. I said all of those things to them and said that I intended to represent anybody, defendants or oth- erwise, that asked me to do so. My concern was to minimize costs, diminish the turmoil and get the traumatics behind the Local Union. Gregory felt he could assist in this manner because, in his view, the strike settlement did not bind him as he was not a member of the Local 148 executive board. After the ratification meeting concluded some of Re- spondents' officials were interviewed by the local media. Among those interviewed was Douglas Griffith. Several witnesses reported that they saw the Griffith interview on television that evening . Purportedly Griffith stated during the course of the interview that he would "assist," "personally instruct," "show," "help," or "tell" members how to file charges against strikebreakers. 25 Although there is evidence that employees at the rati- fication meeting were informed of the Respondent's com- mitment to discourage the filing of charges, there is no evidence that any official of Respondents undertook on the occasion of the ratification meeting or the media interviews thereafter to appeal to the membership not to file new charges against nonstrikers. To the contrary, C. T. Griffiths testified that at one general membership meeting he attended subsequent to the ratification, Doug- las Griffith mentioned the requirement to discourage the filing of charges and then laughed . Members in attend- ance also laughed in response.26 The membership meeting minutes for the 15 March 1984 meeting states: Ski and Bob, again reminded members in accord- ance with "Back to Work Agreement" our adminis- tration continues to discourage members from bringing charges against scabs . It is our duty, as of- ficers of the local union to process all charges per the Constitution. 25 The variety of verbs used represent the recollection of different wit- nesses about the language used by Griffith when he addressed the ques- tion of new charges during the television interview Those witnesses were Virginia Garcia, Nick Badowski, David Dean, Edson Holmblad, Frederick Leeman, and Linda Schmid. 26 The 15 March membership minutes reflect that Griffith "again dis- couraged members from filing charges against scabs " 982 DECISIONS OF THE- NATIONAL LABOR RELATIONS BOARD Raymond Cornwell and Noel Belanger, a Local 148 executive board member, worked together in the same area at the McDonnell-Douglas plant . Following the strike, Cornwell overheard Belanger offer to provide in- dividuals in his work area with the names of nonstrikers if anyone wanted to file an internal union charge. Three other witnesses (Bernice Walters, Vester Stormes, and C . T. Griffiths) observed Belanger at work with internal union charge forms . 27 Purportedly, Be- langer would distribute the charge forms upon request. Richard Seidmeyer, who also works in Belanger's area, observed a stack of internal charge forms on Be- langer's desk and a list of names with checkmarks fol- lowing them . Seidmeyer also overheard Belanger and co- worker George Nickels talk at length concerning the process of accessing the McDonnell-Douglas computer for information concerning the days and hours worked by employees during the strike and observed Belanger and Nickels at the computer screen with the format used to obtain such information . Belanger did not testify. John Caulking filed a charge against H. Claudeson, a nonstriker, on approximately 14 February 1984 while at the Local 148 office of Toby Sturgis, a trustee of Local 148 and its insurance representative . 28 Several other em- ployees accompanied Caulking to Sturgis' office at Local 148 hall on that date . At that time Sturgis told Caulking that, as a member, he had the right to file a charge against Claudeson. Caulking's decision to charge Claude- son was based on the fact that Claudeson 's name was the only remaining name on a list of nonstrikers which Caulking observed in Sturgis' office. Sturgis did not testify but three individuals, Jim Beaver, Bobbie Martin , and Victor Rogers, who accom- panied Caulking to Sturgis' office, all denied statements made by Caulking concerning Sturgis' assistance in filing poststrike charges. No evidence was adduced that Stur- gis made any significant appeal to these employees to forego filing new charges. As the poststrike charges began rolling in, Clarence Gregory prepared forms for members to sign if his serv- ices as counsel were desired. In addition, he contacted individuals who filed charges to see if they wanted him to act as counsel . In this capacity, Gregory reviewed charges filed by those who selected him as counsel and advised them of added information they needed to sus- tain the charges. Although Gregory assisted in approxi- mately 300 cases, in 3 or 4 of those cases, Gregory was called upon to assist the defendant and in at least one case, Gregory assisted both the charging party and the defendant. Jean Gregory, wife of Clarence Gregory, succeeded Mona Hart as Local 148's recording secretary soon after 27 Mona Hart , the Local 148 recording secretary in the period immedi- ately following the strike , received charges on all manner of documents boon after the strike In addition, she was flooded with inquiries about the language to use in charging nonstrikers This experience prompted Hart to develop a charge form modeled after a form Griffith had used for use by those who wanted to file a charge. Berghoff approved Hart's use of this form 28 Sturgis retired from McDonnell -Douglas on 29 January 1984 Prior to that time Sturgis had been a district steward for the local union as well as a trustee and insurance representative Sturgis resigned as a steward following his retirement but retained the other positions the strike. She oversaw the processing of the paperwork in connection with the poststrike charges. Jean Gregory signed a special Air-Scoop bulletin dated 24 April 1984 (G.C. Exh. 43M) which reported on the conclusion of the first group of poststrike trials including the fine schedule imposed against nonstrikers. That bulle- tin also recites: MEMBERSHIP MOVES TO REBUILD LOCAL 148: The membership then, in a mood to expediate [sic] this entire process at the request of many mem- bers, adopted the following motion: That we permit any member who desires to do so, to pay the same fine which was adopted by this membership as an appropriate penalty in the first trial proceedings (4-19-84), whether they have been charged or not. Any member who chooses to pay their fine be treated as if they had been charged and tried as a part of the first trial held in this matter and this membership will then attempt to secure the withdrawal of charges by any charging member(s). In late August 1984, Jean Gregory sent a letter to the Charging Parties which stated as follows: We realize these trials have been a long and tiring process for you. The last trials that will be held, have been sched- uled for Thursday, September 6, 1984 at 4:30 p.m., and will be held at the Local Union Hall. If you do not appear to give your testimony against the person you have charged , it could result in them being found not guilty of those charges. Please make every effort to attend . If you have any questions, contact Ski Cibulskis at the Union Hall. Cibulskis reported on the nonstriker trials in the union newspaper, Air-Scoop. His column in the June 1984 edi- tion of Air-Scoop is a factual report of the progress of the various trial boards and the processing of the internal union charges against the nonstrikers . In the August edi- tion of Air-Scoop (Stip. Exh. E) at page 5 contains the following report by Cubulskis: It has been brought to our attention that some of the strike-breakers are bragging that they will never pay their fines or back union dues . We will see. The Union has a moral and constitutional obliga- tion to support those members who supported its fight against concessions. This Administration intends to uphold its responsibility in seeing that these fines are collected. In fact, several thousand dollars have al- ready been collected , a first for Local 148. The Company, strike-breakers and the anti-union law firm hired to defend the scabs are in for a tough and costly fight. [Emphasis added.] Several Local 148 officials claimed to have prevailed upon some of the charging parties to withdraw post- strike charges against certain individuals. However, each of these instances involved special circumstances on the AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) part of the nonstriker which Local 148 officials felt mer- ited intervention in order to prevent union discipline for crossing the picket line.29 The record does not disclose any precise number of cases of this nature, but it strongly suggests that they are quite limited. c. Argument The General Counsel construes the strike settlement and its provision pertaining to the nonstrikers has a broad amnesty agreement which imposed an affirmative duty on the Respondents to discourage the filing and prosecution of poststrike charges against the nonstrikers in order to serve the broader objective of ending the strike hostilities. Although the General Counsel concedes that McDonnell-Douglas recognized an individual union member's right to file a charge notwithstanding the set- tlement and the Respondents' obligation to process that charge in the regular course of business , the General Counsel believes that Local 148 officials used this con- tractual window to actively encourage-rather than dis- courage-the filing of poststrike charges by individual members. Finally, the General Counsel notes that the strike settlement agreement bound the Respondents and McDonnell-Douglas institutionally; for this reason, the General Counsel believes that regular agency principles should be employed in evaluating the conduct of all Re- spondents' agents in connection with the filing and proc- essing of poststrike charges.ao The General Counsel also argues that the amnesty agreement language specifically bars the charge filed against C. T. Griffiths by Douglas Griffith, an official of Local 148, notwithstanding the fact that C. T. Griffiths was not charged with personally crossing Respondents' picket line. The Charging Party also argues that the terms of the strike settlement agreement-and the background negoti- ations which produced it-impose an affirmative duty upon both McDonnell-Douglas and Respondents to dis- courage any third party action which would be disrup- tive to work place harmony. Included, according to the Charging Party, was the filing of internal union charges by individual members. In the Charging Party's view, the Respondents, by the conduct of their officials, failed to affirmatively discourage the filing of internal union charges and , therefore, they are liable for violating Sec- tion 8(b)(1)(A) by breaching the requirement in the strike settlement agreement to discourage any third party ac- tions. Like the General Counsel, the Charging Party 29 This personal selectivity is highlighted in the cross -examination of Glen Plunkett , co-chairman of the Local 148 bargaining committee, by Charging Party's counsel . There, Plunkett acknowledged that he spoke to Earl Hatton, a McDonnell-Douglas employee with whom he worked, about withdrawing charges against certain individuals who had honored the picket line until the final 2 weeks of the strike Plunkett acknowl- edged that he made no request of Hatton to withdraw charges against others who had honored the strike for only a short period or not at all Asked, for example, about one such individual identified as G Brown, Plunkett explained "I felt that he broke the strike and he should have been charged" •10 This argument is directed principally at Clarence Gregory's asser- tion during the hearing that he was not bound by the agreement's re- quirement to discourage poststrike charges as he is not a member of the Local 148 executive board . In the General Counsel 's view , Gregory was bound primarily by virtue of his position as a district steward '983 contends that Respondents actually encouraged its mem- bers to file charges against the nonstrikers. Local 148 argues that the strike settlement provision pertaining to discouraging third party actions is not valid and enforceable because there was "no meeting of minds" traceable to an ambiguity for which neither party is to blame. Local 148 feels the situation is analogous to that in Capital Packing Co., 212 NLRB 98, 107-108 (1974). In this connection Local 148 asserts that Inge- bretsen was of the view that the poststrike charges would never be processed because of the comment by Majerus that the poststrike charges would be "taken care of." Local 148 contends that it and the UAW placed an entirely different meaning on the word "discourage." According to Local 148, the evidence shows that al- though Respondents knew that they could not distribute a list of names of employees who had been charged by Griffith prior to the end of the strike, they did believe that it was appropriate for them to "accept and to assist in the processing of charges that might be filed by indi- vidual rank-and-file members." Local 148 asserts that there is no evidence to establish that either it or the UAW understood that the word "discourage" to mean that the charges would fall by the wayside and never be processed as implied in Ingebretsen's understanding that the charges would be "taken care of." These circum- stances establish, according to Local 148, that neither the Respondents nor McDonnell-Douglas completely under- stood or knew of the meaning the other applied to the term "discourage" as used in the strike- settlement agree- ment.a' For this reason, Local 148 believes that there was no meeting of minds about the obligations of the parties with respect to discouraging third party actions and, hence, the necessary mutual assent with respect to the amnesty provision of the settlement agreement is lacking. Even assuming that there is an enforceable agreement, Local 148 still does not believe that Respondents breached the settlement agreement as alleged . Local 148 asserts that the requirement to discourage the filing of poststrike charges by individual members-which was not prohibited by the strike-settlement agreement-only prevented Local 148 only from distributing a list of those individuals who had been charged by Griffith. It also urges that the strike settlement did not prohibit Local 148 officials from informing their members about their right to file individual charges or from assisting them in filing and processing of charges. As no evidence estab- lishes that Respondents distributed the list of individuals earlier charged by Griffith, the conduct of its officials was sanctioned by the understanding reached in the ne- gotiations leading to the strike settlement agreement. Local 148 believes that the conduct relied upon by the General Counsel to establish that the Union breached the agreement shows only that Local 148 officials acted con- sistent with negotiated understandings , and hence, that it 31 Contrary to Douglas Griffith's testimony that the language about discouraging third party actions pertained only to civil actions, this argu- ment seems to concede, that the language does apply to internal union charges 984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD did not violate Section 8(b)(1)(A) of the Act by breach- ing the strike settlement agreement. In addition, the UAW argues that the term "discour- age" any third party actions is too ambiguous to be le- gally enforceable for other reasons. Thus, the UAW notes that the phrase could mean that Respondents were obliged to discourage only the filing of third party ac- tions or it might also mean Respondents was obliged to discourage already filed third party actions at every sub- sequent stage. The ambiguity of the phrase, the UAW argues, was not cleared up by the bargaining history re- lated to the strike settlement agreement . In this latter regard, UAW argues that the understanding shown to have been reached in the negotiations that the UAW members were free to file charges and that union offi- cials were constitutionally obliged to process them did not prevent UAW officials from informing members of their right to file charges as individuals nor did it pre- vent UAW officials telling members how to file miscon- duct charges. Even assuming that the strike settlement is enforcea- ble, the UAW contends that undertakings agreed to on the union side of the table were limited. Like Local 148, the UAW argues that union officials were permitted to assist members in filing charges and, once filed, both Local 148 and the UAW were constitutionally bound to process the charges. Finally, the UAW argues that the Board' s decision in Texaco, Inc., 273 NLRB 1335 ( 1985), precludes consider- ation of the unfair labor practice charges here as McDonnell-Douglas failed to discourage Attorney Flor- ence-retained by the Employer-from filing the charge against the UAW in violation of the strike settlement. Local 148 joined this argument. d. Additional findings and conclusions In Operating Engineers Local 39, 240 NLRB 1122 (1979), the Board held that union discipline against non- strikers in derogation of a strike amnesty agreement reached with an employer at the conclusion of a strike violated Secion 8(b)(1)(A). The amnesty agreement in the Local 39 case provided that neither the union nor the employer would "institute any [legal] action against . . . [the] other in connection with any activities . . . during [their recently concluded] strike . . . [but that] the foregoing [would not] preclude any union member [nor] any . . . employee [of the em- ployer] from instituting . . . legal proceedings against each other." Additionally, it provided that the union, its members, the employer and its employees would not "interfere with, threaten, harass or question any employ- ee [about matters] related to the [recently concluded] strike, including but not limited to working [for the em- ployer] during the strike ...." After the strike, union agents sought to question a member who had abandoned the strike and returned to work. When the errant member declined to be ques- tioned, he was tried, fined, and expelled by the union. The Board concluded that both the agent's attempt to question the member and the subsequent discipline vio- lated Section 8(b)(1)(A). In so concluding, the Board re- jected the union's claim that its conduct was protected by the Section 8(b)(1)(A) proviso. The Board reasoned that dictum of the Supreme Court in Scofield v. NLRB, 394 U.S. 423 (1969), limited the scope of the 8(b)(1)(A) proviso to only those union rules and actions which "left the collective bargaining process unimpaired" and "breached no collective bargaining contract ." Scofield, supra at 436. Based on that language, the Board observed that "the principle that a union may impose internal dis- cipline on its members without running afoul of Section 8(b)(1)(A) is not without exception." And because it is "the express and fundamental policy of the Act to en- courage the practice and procedure of collective bargain- ing," the Board felt that parties must be held to their col- lectively bargained agreements. On the basis of this ra- tionale, the Board evolved the principle that by breach- ing an amnesty agreement through the poststrike disci- pline, a union violates Section 8(b)(1)(A). Subsequent similar cases continued to hold unions liable under Section 8(b)(1)(A) for breaching amnesty provisions of both collective-bargaining agreements and strike settlements. Thus, in Service Employees Local 250, 248 NLRB 1390 (1980), the union tried and fined 19 em- ployees on strikebreaking changes notwithstanding an amnesty agreement between the union and employer which provided that no employees would "suffer any re- taliation, discrimination, or disciplinary action by either [the employer or the union] because of their participation or non-participation in the strike The Board adopted Administrative Law Judge Stevens' conclusion that the union's conduct breached the amnesty agree- ment and therefore violated Section 8(b)(1)(A) on the basis of the rationale in the Local 39 case. In Food & Commercial Workers Local 1439 (Rosauer's Supermarkets), 275 NLRB 30 (1985), the union represent- ed three separate units at a supermarket . Each unit had a separate contract. While one unit was on strike, the union threatened employees in the two other units with discipline, including fines, if they crossed the union sanc- tioned picket line. The contract applicable to one of the nonstriking units provided that "it shall not be cause for ... discipline by the [u]nion . . . for an employee to cross or refuse to cross a primary . . . picket line at the [e]mployer's premises." Relying on the Local 39 case the Board held that the union's threat to discipline breached the "no-discipline" provision of the parties' collective- bargaining agreement and thereby violated Section 8(b)(1)(A)• As for the present case, I find the amnesty agreement bargained between McDonnell -Douglas and Respondents is not markedly different from those in the three cited Board cases. To be sure, the different circumstances, i.e., the misconduct discharges and the pending union charges against the nonstrikers, produced different lan- guage designed to treat this special situation . The bar- gaining history shows that the Respondents' adamantly maintained that they were in no position to waive the right of individual members to file charges against the nonstrikers or to process any such charges in good faith if filed . Although the McDonnell-Douglas negotiator ac- ceeded to Respondents' position, he extracted a commit- ment from Respondents to do the next best thing, i.e., AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) 985 .. to discourage any third party actions alleging mis- conduct during the strike," for the overall purpose of putting the strike animosity to rest. In agreement with the General Counsel, I find the dis- puted amnesty language imposed an affirmative duty on all of the Respondents' agents to actively attempt to per- suade its members to forego the filing of new charges or to withdraw any newly filed charges. This construction is manifestly consistent with the overall objective of put- ting the strike behind the parties and keeping the strike animosity out of the plant especially where, as here, the individual member's right to file a charge and have it processed was preserved by the negotiators. Nevertheless, the Respondents argue that the disputed language of the amnesty agreement is ambiguous as there was no clear understanding of the action required to "discourage third party actions ...." Among the modern American dictionary definitions of the verb "dis- courage" are "[t]o try to prevent by expressing disap- proval or raising objection ...,"32 "to express disap- proval of ..."33 and "to hinder by disfavoring . . . to attempt to dissuade."34 This consistency among major lexicographers suggests a lack of any significant inherent ambiguity in the verb "discourage." And, in my judg- ment, the above quoted definitions capture the common- place meaning reasonable people would attach to the word "discourage" as used in the context of the parties' amnesty provision. Although other verbs might more precisely describe the action communicators seek to convey, it would be wildly irrational to hold that the verb "discourage" has such an imprecise meaning as to render obligations imposed by its use in a contractual document unenforceable. The ambiguity perceived by Respondents is woven from a strained and unreasonable view of the evidence. Read in its entirety, Ingebretsen's credible testimony re- flects that he plainly understood and accepted the fact that Respondents' could not waive a member's right to file a charge and have it processed in good faith. I find no warrant for reading Ingrebretsen 's testimony, as Re- spondents do, to mean that he had any expectation that the Respondents' would not process poststrike charges. However, he had every right to expect Respondents' of- ficials to attempt to dissuade members from filing new charges or to withdraw such charges if they did. This expectation is consistent with Majerus' promise to "take care of members' demands to file new charges. In this context, Majerus was simply assuring Ingebretsen that the Respondents' leadership would exercise that influ- ence they had with the membership to minimize the damage which could result to poststrike tranquility from the reservation of the membership's right to file a charge. Equally obvious is the fact that the disputed language was never intended only to restrict Respondents from turning over a list of those charged by Griffith or to 32 The American Heritage Dictionary of the English Language, Houghton Mifflin Company , Boston, MA, 1976, at p. 376. 33 The Random House Dictionary of the English Language, Random House, New York, NY, 1979, at p 410 34 Websters' New Collegiate Dictionary, G & C. Merriam Co, Spring- field, MA, 1974, at p 326. permit Respondents' officials to "assist" in the filing of new charges as Respondents claim . Griffith justified this narrow interpretation by claiming that Ingebretsen merely hoped that some individuals already charged as nonstrikers would "fall through the cracks" if only indi- vidual members were permitted to file new charges and, to this end, the Employer's negotiator sought only to be assured that Griffith's list would not be made publicly available. Although that may well be the case, it does not adequately explain the broader, more encompassing language used in the settlement which is now in dispute. Likewise, the language of the agreement and the back- ground negotiations do not suggest that Ingebretsen ever agreed that Respondents' officials could assist members to file new charges. In my judgment it would be wholly unreasonable to read a loophole of that magnitude into this amnesty agreement absent specific language to that effect or overwhelming evidence that the negotiators un- iformily understood the language to mean just that. That is not the case here. Only Griffith, and to a lessor extent Gregory, asserted such a narrow reading of the disputed language. Absent clear, independent corroboration-not present here-I decline to rely on their interpretation. To do otherwise would vary the plain meaning of the words used in the amnesty provision. Accordingly, I find the disputed language of the strike settlement lacks any legally cognizable ambiguity. Having concluded that the amnesty agreement im- posed an affirmative duty on Respondents to attempt to dissuade members from filing new charges against the nonstrikers, I now find that Respondents seriously breached that duty by-for all intent and purposes- practically inviting new charges. Nearly three times more employees were charged with strikebreaking activities in the poststrike period than had been previously charged by Griffith.35 Undoubtedly ele- ments in the strikers' ranks would be unwilling to pardon the nonstrikers. That emotional byproduct survives nearly every strike. But the sheer volume of poststrike charges alone suggests an unrestrained, orchestrated effort to get even with the nonstrikers. At the outset, this conclusion is supported by the fact that Respondents' of- ficials were capable of containing such fury during the strike period as no member other than Griffith filed even a single charge against a nonstriker. It is my finding after having weighed all the evidence and argument, that the explanation lies in the fact both Local 148 and the UAW embarked on a course best described by Local 148 Vice President Cibulskis in the August 1984 edition of Air- Scoop as "a moral and constitutional obligation to sup- port those members who supported [Respondents'] fight against concessions." Substantial evidence supports the conclusion that this poststrike charge filing phenomenon resulted from the failure of either Local 148 or the UAW to discourage new charges as required by the settlement agreement. Thus, at the ratification meeting and in subsequent televi- sion interviews, Douglas Griffith not-so-subtly invited 33 This gap is widened if consideration is given to the fact that ap- proximately 160 of those charged by Griffith were not subsequently charged in the poststrike period. 986 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD new charges with his offer of assistance in filing new charges. In effect, this offer was a request for individual members to become his surrogates in prosecuting the nonstrikers. To the extent that the faithful strikers may have had little to console them after 17 weeks, his invita- tion was obviously well received . And the seriousness of his assistance remarks that afternoon must be measured in the further light that no other superior official in Local 148 or the UAW appealed-so far as this record shows-to the members in any fashion to put the strike animosity behind them or to refrain from filing charges as they pledged in the strike settlement . Griffith's mock- ery of the obligation to discourage members from filing new charges at a subsequent membership meeting-as re- ported in C. T. Griffiths' credible testimony-sheds fur- ther light on the true object of his assistance announce- ment at the ratification meeting. Gregory's message at the ratification meeting that he would act as counsel reinforced Douglas Griffith's appeal for members to come forward as surrogates. Al- though Gregory may have attempted to cloak his state- ments with an aura of fairness by offering to assist both charging parties and nonstrikers , that dual offer was a mere illusion masking the true purpose as it is highly un- likely many of the nonstrikers appeared at the 9 Febru- ary ratification meeting. I find Gregory was only second- ing Griffith's offer to assist members who were willing to stand in for Griffith given the time and setting of Gregory's "counsel" announcement. Moreover, Greg- ory's close connection with the Local 148 hierarchy sug- gests that his activities as "counsel" served to effectuate the 12 December warning to nonstrikers that the Local 148 administration would act as the prosecutors of the nonstrikers. Contrary to Respondents' claim that the C. T. Grif- fiths charge is not covered by the amnesty agreement at all, I find that the poststrike charge against C. T. Grif- fiths falls within the literal language of the disputed por- tion of the amnesty agreement in that it alleged "miscon- duct during the strike ." Moreover, it contravenes the overall objective agreed upon by all to put the strike and its animosity to rest . The mere fact that there was no similar charge pending against C. T. Griffiths or anyone else at the time the amnesty agreement was negotiated does not preclude application of the settlement terms to unforeseen situations unquestionably at odds with the letter and spirit of the parties' agreement. This conduct against C. T. Griffiths further demonstrates that the Local 148 officials felt no obligation to discourage action designed to punish those engaged in strikebreaking activ- ity in the interest of poststrike tranquility. The C. T. Griffiths charge could only encourage loyal strikers to seek revenge against the nonstrikers . Viewed in this manner it contributed to the prevailing atmosphere at Local 148 toward the nonstrikers. The motion adopted-as reported in the April 1984 Air-Scoop bulletin-by the Local 148 membership appears to establish a policy at Local 148 in conflict with the am- nesty provision inasmuch as it suggests that the with- drawal of poststrike charges would be attempted after the payment of the adopted fines. Other conduct by officials of Local 148 is consistent with the conclusion that it was the official-albeit unspo- ken-policy of Local 148 to punish the nonstrikers. Thus Noel Belanger and Toby Sturgis identified nonstrikers and supplied their names to individual members. Their conduct aids in understanding the three -fold increase in poststrike charges and merits the conclusion that the poststrike action against the nonstrikers was an orches- trated affair. The involvement of these two Local 148 of- ficials in such conduct was clearly at odds with the duty imposed by the amnesty agreement to discourage the filing of such charges. Glen Plunkett's decision to remain silent with respect to charges against certain nonstrikers vividly illustrates the attitude which seemed to prevail among Local 148 officials. And the two lead sentences of the March 1984 minutes suggest the effort to discourage the filing of new charges was likely cancelled by the promise to faithfully process them if filed. Equally consistent with my conclusion are Jean Greg- ory's letter to the charging parties and Cibulskis' Air- Scoop article. Their conduct perpetuated the prosecution of the charges once filed. Based on the foregoing, I find that upon entering into the strike settlement Local 148 officials immediately vio- lated its terms by creating an atmosphere wherein Local 148 members were encouraged and assisted in filing and prosecuting new charges against the nonstrikers. Al- though certain officials may have intervened to prevent the filing of charges or to cause the withdrawal of charges already filed in a few isolated instances involv- ing long-term acquaintances and others whose reasons for abandoning the strike were compelling in the eyes of those particular officials, such limited efforts are insuffi- cient to overcome the general atmosphere which encour- aged punishment of the nonstrikers. Respondent's officials fully protected the rights of members in the agreement reached with McDonnell- Douglas to file poststrike charges . However, Respond- ents institutionally committed themselves-and all of their agents-to a policy of discouraging their members from exercising their right to punish the nonstrikers. As detailed above, the preponderance of the evidence estab- lishes that some ignored that commitment outright while the remainder were inexplicably silent. In light of the conduct of Douglas Griffith, Clarence and Jean Greg- ory, Noel Belanger, Toby Sturgis, and Ski Cibulskis, Re- spondents' other officials-from the top down-had a duty to speak and to speak vigorously. There is no evi- dence that they did so. Because certain Local 148 agents overtly encouraged and assisted Local 148 members to file and prosecute poststrike charges while other more influential agents of both the UAW and Local 148 stood by in silence, nei- ther the UAW nor Local 148 can be absolved from the mass filing of poststrike charges against the nonstrikers. Claims that the amnesty agreement had been violated were raised repeatedly before Local 148 officials and in the hundreds of appeals filed with the UAW on behalf of the nonstrikers. C. T. Griffiths individually raised the matter both in his poststrike attempt to have Local 148 AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) 987 placed in receivership and in the appeal of his conviction on the charge filed against him by Douglas Griffith. These repeated efforts to call attention to this issue were-insofar as this record shows-either ignored alto- gether or treated as premature . The most extreme exam- ple is the UAW's decision on C. T. Griffiths' appeal of his poststrike conviction and suspension. Although the decision notes that Griffiths raised the breach of settle- ment as a defense, the decision simply ignores this ex- tremely pertinent issue altogether. Hence, culpability here is not limited by a lack of knowledge. Although it may be true that Respondents' officials were placed in a precarious political position by the amnesty agreement- a position made even worse following Douglas Griffith's and Clarence Gregory's statements at the ratification meeting-their predicament cannot alter the fact that they had legally bound themselves to affirmatively dis- courage the filing of the poststrike charges. The UAW's claim-in which Local 18 joins-that consideration of all charges here are barred by the prin- ciple established in Texaco, Inc., supra, lacks merit. In that case, the Board dismissed the complaint because the underlying unfair labor practice charge did violence to the terms of the strike settlement . Here the unfair labor practice charges are designed to preserve the terms of the parties' amnesty agreement . Hence, the policy of honoring the bargain struck at the negotiating table is served by entertaining the charges filed with the Board here; the same policy was served in Texaco by dismissing the complaint. Accordingly, I find that Texaco does not bar consideration of this complaint on the merits as Re- spondents claim. Applying the principle of Operating Engineers Local 39 and its progeny discussed above, I find Respondents vio- lated Section 8(b)(1)(A) of the Act by encouraging and promoting the filing and prosecution of the poststrike charges-including the charge against C. T. Griffiths- in violation of the amnesty agreement reached with McDonnell-Douglas.36 In light of this conclusion, I find it unnecessary to resolve the issues pertaining to the non- strikers resignations from the UAW and Local 148 or the alternate claim of the General Counsel that the charge against C. T. Griffiths was discriminatorily motivated to silence his intraunion activities. 3. Threats and coercion issues a. Pleadings and evidence Complaint paragraphs 13 and 14 allege that early in the strike Local 148 published, posted and distributed a document entitled "1983 SCABS" listing the names, de- 36 The conclusion reached with respect to C. T. Griffiths is unaffected by the Board's holding in Food & Commercial Workers Union Local 81 (McDonald Meat), 284 NLRB 1084 (1987), which issued after the parties filed their briefs in this case Although the Board majority held in that case that a labor organization may lawfully suspend or expel employees who resign their union membership and return to work during a strike, its decision makes clear that the holding is limited to those situations where there is no "threat of monetary penalty." Id at fn. 12 and 1087. As membership in good standing is a prerequisite to serve in the capacity of district steward and as that position is vested with contractual supersen- iority, the potential for monetary loss in C. T. Griffiths' case cannot be disputed partment numbers, addresses and telephone numbers of nonstrikers. General Counsel alleges this action intimidat- ed and coerced employees who refused to participate in the Respondents' strike. Complaint paragraph 20(d) alleges that Local 148 President Berghoff solicited striking employees to engage in violence against nonstriking McDonnell-Douglas em- ployees. Complaint paragraph 21(e) alleges that Douglas Griffith solicited striking employees to engage in vio- lence against nonstriking McDonnell-Douglas employees. Complaint paragraph 22 alleges that Glen Plunkett threatened an employee with violence in the course of a telephone conversation because the employee had re- turned to work at McDonnell-Douglas during the strike. Complaint paragraph 23 alleges that Carmen Cibulskis also threatened an employee with violence in a telephone conversation because the employee returned to work at McDonnell-Douglas during the strike. The parties stipulated that on or about 20 October 1983 Local 148 published, posted and distributed a docu- ment entitled " 1983 SCABS" at its meeting hall. A true copy of that list appears in the record as Stipulated Ex- hibit D. The exhibit contains names, department num- bers, addresses, and telephone numbers of certain indi- viduals identified as nonstriking employees of McDon- nell-Douglas . More specifically, the list contains the names and addresses of 29 individuals . The department numbers are listed for 25 individuals and the phone num- bers are listed for 14 individuals. General Counsel called several nonstrikers named on the 1983 SCABS list as witnesses. One such person, Frances F. Hill, received an anonymous "funeral notice" dated 2 December 1983. (See G.C. Exh. 215(j).) The two-page hand-lettered "funeral notice" was mailed in an envelope addressed to "Tom & Fran McGoldrick." Hill is married to Tom McGoldrick (also a nonstriker) but continues to use her unmarried name at work. McGol- drick's name, address, telephone and department numbers appears on the 1983 SCABS list; Hill's name appears di- rectly below followed by quotation marks signifying her address and telephone number is identical to McGol- drick's. For a number of years prior to December 1983, Hill's name, address and telephone number had also been listed in the Orange County, California telephone direc- tory. The McGoldricks' street address is misspelled "Pleasent" in place of "Pleasant" on both the 1983 SCABS list and the envelope bearing the so-called "fu- neral notice." Edson Holmblad and his wife (both nonstrikers) re- ceived an unsigned letter on or about 10 December 1983. The Holmblads' letter is littered with obscenities and death threats. (See G.C. Exh. 108(a).) The Holmblads' names, address and department numbers appeared on the 1983 SCABS list. Shirley Issacs returned to work on 18 October, the second day of the strike. Her name, address, telephone and department numbers appeared on the 1983 SCABS list. She learned of that publication in late October 1983 from McDonnell-Douglas Attorney Sharon Kee. That prompted her to call Local 148 in order to speak with President Berghoff. After disclosing the purpose of her 988 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD call to an unknown person who answered , Issacs was re- ferred to another person whose name she also was unable to recollect. Issacs told the latter person that the list's publication was endangering the lives of the non- strikers. The unknown person responded that that was the purpose of the list. Angered, Issacs hung up. Issacs received threatening calls during the strike. She described them in this manner: Q. After the day that you saw [the 1983 SCABS list] . . . did you ever receive any telephone calls at your house with regards to the strike? A. Constantly, from the first day I went in to work. Q. Did you recognize any of the voices? A. No I didn't. Q. Did any of the persons identify themselves to you? A. Never. Q. What sorts of things were said? A. They threatened to burn my home, my car, they threatened to kill me. Intervening colloquy concerning an objection Q. The question was what sorts of things were these people telling you? A. Well, they were calling me filthy names and calling me a scab and told me that I better not cross the line anymore and that my house would be burned, my car would be burned, and they would call my grandchildren which they're adult children after I went to work, and tell them how they were going to kill me and that they were going to get me right after work and then there was one lady that did call me after every threat I got I got a phone call from her, and she'd say, "Shirley I understand you crossed the picket line," and I'd say yes, why. And she'd say "oh, they were telling me they're going to get you, and you better not cross any- more." And I said well it's too late now , I've al- ready crossed . So, the last phone call I received she called me, and she said "Shirley, have you gotten anymore calls and have they threatened your life." And I said, "Yes they have and they threatened my house," and she says, "Oh, God, I'm really worried about you." And I said, "Don't worry, go back and tell them that I've got insurance on my house, they can burn it, I've got insurance on my car, they can burn it, and if they take my life they 're the ones who's going to have to pay for it, and I never got another phone call." Q. Who was the lady that you spoke with? A. Wanda Clark. Q. How long did these telephone calls continue? A. They lasted about two months or a month and a half at least. Q. Do you [sic] grandchildren live in the same house that you lived in? A. They did at the time, yes. Q. Did you take any actions as a result of receiv- ing these telephone calls? A. I had the Lakewood police at my house four times and security came over to my house and spent, not inside of my house, but outside of my house at night for a week or two. Q. When you're referring to Security who do you mean? A. McDonnell-Douglas Security. Later on cross-examination Issacs testified as follows: Q. Ms. Issacs . . . you started getting calls from people who were upset about the fact that you were crossing the picket lines from October 18, the day that you first crossed the picket line. A. Right. Q. And you were told these things that you men- tioned from October 18th on, is that correct? A. Yes. After the strike Wanda Clark filed an internal union charge against Issacs. Mary H. Garrett, a nonstriker whose name and ad- dress-but not her telephone numberS7-appeared on Local 148's 1983 SCABS list received frequent anony- mous telephone calls throughout the strike. The callers often referred to her as a "scab." After one such call Garrett said her garage exploded and burned.38 Lulu A. Washington, another nonstriker, claimed that she saw her name on a Local 148 1983 SCABS list and that she received numerous threatening telephone calls about working during the strike . Washington is not listed on Stipulated Exhibit. D. Although there is some evi- dence that Local 148 updated its 1983 SCABS list on oc- casion, no such list bearing Washington's name was pro- duced for this record. Additionally , in late October 1983, Washington's husband's truck windshield was smashed while parked at their home. While investigating this cas- ualty, the Washingtons also noticed a strong odor of gas- oline about the truck. Vincent Bellone, a unit employee who participated in the strike for the first 15 weeks, was recruited by McDonnell-Douglas security agents to serve as a double agent in and around the Local 148 meeting hall. Accord- ing to Bellone, the 1983 SCABS list was of particular in- terest to McDonnell-Douglas security officials and a copy was eventually provided to a security agent by Bel- lone. No evidence links Respondents' agents to any of the foregoing threatening letters, telephone calls or property damage incidents. Likewise no evidence shows that any 97 General Counsel 's brief erroneously asserts that Garrett's telephone number appeared on the 1983 SCABS list 38 General Counsel attempted to introduce pictures of the damage to Garrett's garage. In this attempt, Garrett testified that the garage fire oc- curred on I1 October 1983, 6 days before the strike began Garrett per- sisted in her testimony with that date until its significance became obvi- ous At that time Garrett, who did not mention either the calls or the fire in a prehearing statement to the General Counsel , changed her testimony and asserted the garage fire occurred on II November 1983 1 rejected the proffered picture exhibits on the ground that the foundation laid to establish their relevance was unreliable General Counsel asserted that the exhibits would be reoffered with a more reliable foundation-the local fire department arrived to put out the fire, it was reported to the police and an insurance claim was filed-but they never were again offered AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) 989 agent of Respondents suborned any of the acts detailed above. Wayne Roberts, a McDonnell-Douglas employee who abandoned the strike on 26 January 1984, received a tele- phone call at approximately 4 p.m., about 3 days after he returned to work, from Al Davis, a fellow employee. After Davis initially questioned Roberts about returning to work, Glen Plunkett, co-chairman of the Local 148 bargaining committee, spoke to Roberts. In a statement Roberts provided to McDonnell-Douglas security agents 3 days following the telephone call (G.C. Exh. 100(t)), Roberts stated: Davis then said that Plunkett (Glen) wants to talk to you. You know what happened to Don Tucker. We have the dogs out after you. We know where you live and we know where your son (age 15) lives in the valley. I replied, "I am hurting for money and I have to go in." Plunkett then gave the phone to Ski Cibulskis. Ski stated, "The dogs are out after you. Do you know who Garza is?" Plun- kett got back on the line and said if you come in and apologize, today, we will call the dogs off. I have heard or was told that Garza was the one that beat up Don Tucker. Proglio was pointed out as one of the "dogs." At the hearing, Roberts asserted that he had little or no recollection of the telephone conversation . Accordingly, the statement (G.C. Exh. 100(f)), was received as past recollection recorded. Roberts did not return to work after receiving the phone call until 6 February 1984. Although Cibulskis was aware that Roberts had crossed the picket line, he denied the telephone exchange attributed to him by Roberts in the foregoing statement. Plunkett recalled the telephone conversation with Roberts following the latter's return to work in late Jan- uary 1984. Plunkett said that he was summoned to the telephone at the Local 148 office by Al Davis, who re- quested that he speak with Roberts. Plunkett-who was aware that Roberts had recently crossed the picket line-told Roberts that he should "come out" (rejoin the strike) as "it is not right to be in there." Plunkett claims that he invited Roberts to come to the Local 148 hall and speak with Cibulskis as there was a good possibility that he could obtain a complete "pardon" if he did so. When Roberts demurred saying that he was afraid that he would be physically attacked, Plunkett offered to serve as his personal escort. However, Plunkett denied threatening Roberts or any of his family members with violence in the course of this telephone conversation. According to Plunkett, Roberts appeared at the Local 148 hall the morning following the telephone call where he addressed members attending an informational meet- ing. Plunkett reported that he overheard Roberts urge the strikers to "hang in there ." Cibulskis recalled that after Roberts first abandoned the strike "he came back out and gave a little speech at the Union Hall and got a big round of applause and turned around and went right back in." Vincent Bellone testified that on one occasion between the second and fourth week of the strike, he was in the office of Local 148 President Berghoff. Roy Kennedy, another striker, was present . Bellone and Kennedy were members of the Local 148's transportation committee during the strike and would often visit the various gates where strikers were posted. On this particular occasion- which was between midnight and 1 a.m.-Berghoff re- ferred to an unnamed painter who had crossed the picket line. Purportedly, Berghoff felt the painter was "bad- mouthing" Local 148 and the strike. Berghoff revealed his intention to visit the painter and attack him. Bellone said he volunteered to do it in order to prevent Berghoff from getting into trouble . Bellone also said that Berghoff asked to have someone "go over there and knock the painter down and just tell him to keep his mouth shut." Later during the same conversation Bellone reported that Douglas Griffith entered Berghoff's office with a photograph and asked if anyone knew the individual pic- tured in the photograph . Griffith stated that the individ- ual had been seen crossing the picket line. Berghoff pur- portedly stated that the individual was to be put on the list and then added : "Well, this is another problem, maybe we ought to take care of this guy the same way."3 s According to Bellone, Kennedy drove him to the gate normally used by the painter at approximately 4:30 a.m. that day. A food truck was parked near the gate . Bellone planned to purchase a cup of coffee, throw it at the painter and then attack him. When the painter appeared at the scene, Bellone said that he was accompanied by "six Long Beach policemen" so Bellone and Kennedy left. Bellone reported that in about the fifth or sixth week of the strike, Berghoff expressed a fear that another caucus planned a disruption at a Local 148 meeting. On this occasion Berghoff purportedly instructed Bellone to warn anyone attempting to get on the stage, engage in an outburst, or resisting expulsion from the meeting hall, that "we'll . . . meet [you] down at the railroad track" and "smack [you] around." Bellone claimed that other Local 148 officials and two individuals named Chuck Ruses and Eddy Marshall also requested his assistance with anticipated trouble at Local 148 meetings. Both Berghoff and Kennedy denied the comments at- tributed to Berghoff concerning the painter . Although Kennedy acknowledged there were probably three or four occasions when he was present in Berghoff's office with Bellone and numerous other individuals "shooting the bull" he never heard Berghoff instruct Bellone to attack an individual crossing the picket line. Indeed, Kennedy denied that Berghoff ever said anything related to committing violence against nonstrikers. Berghoff claimed to be suspicious of Bellone . In par- ticular, Berghoff suspected that Bellone had bugged his office for McDonnell-Douglas security investigators. On 89 Presumably this evidence served as the basis for the General Coun- sel's allegation in complaint par 21(e) In his brief , counsel for the Gener- al Counsel makes no argument that Griffith violated the Act as alleged in par. 21 (e) and this evidence is not sufficient to support that allegation. Accordingly, without further discussion, par. 21 (e) is dismissed 990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD another occasion Berghoff found Bellone standing near his office door and suspected that Bellone was attempt- ing to overhear a conversation Berghoff was conducting in his office . Consequently, Berghoff said he "didn't con- sider Bellone a real solid individual I put my stock in." In any event Berghoff denied that he ever instructed Bel- lone to commit violence against any nonstriker. b. Argument, additional findings, and conclusions The General Counsel argues that the publication of the 1983 SCABS list by Local 148 violated Section 8(b)(1)(A) because it had "a reasonable tendency to coerce or intimidate employees in the exercise of their right to refuse to join the strike." This is so, the General Counsel argues, because several "non-strikers were .. . bombarded with telephone calls and letters threatening them with violence . . . ." In these circumstances, the publication of the names, addresses and telephone num- bers of nonstriking employees would reasonably tend to inhibit Local 148 members from exercising their right to refrain from striking for fear of being subjected to similar harassing phone calls and possible violence at their homes. This is especially true here, it is argued, as the strike was particularly violent.40 The General Counsel and the Charging Party Flor- ence analogize the 1983 SCABS list publication herein with cases involving the photographing of nonstrikers. One cited case, Laborers Local 383, 260 NLRB 1340 (1982), was tried to Administrative Law Judge Clifford Anderson on stipulated facts which provided , inter alia, that union agents "intimidated " nonstriking employees by taking pictures of them and/or writing down the license plate numbers of the vehicles of nonstriking employees. The Board adopted Judge Anderson 's conclusion that Section 8(b)(1)(A) was violated by such conduct where the stipulated facts specifically provided that the conduct had intimidated the nonstrikers as it could be inferred such actions were calculated by the union to instill a fear of retribution among the employees involved. In another cited case, NLRB v. Service Employees Local 254, unofficially reported at 92 LRRM 2577 (1976), the First Circuit enforced a Board Order based on the photographing of nonstriking employees by an agent of the union . In the Local 254 case, it was found that nonstrikers were detained by pickets while photo- graphs were taken . In these circumstances , the Court held that the taking of photographs was calculated to in- still a fear of retribution because of the nonstrikers ' refus- al to join the strike. Local 148, citing Letter Carriers v. Austin, 418 U.S. 264, 282-283 (1974), argues that the posting and dissemi- nation of the 1983 SCABS list-even with the addresses and telephone numbers-is activity protected by Section 7. Accordingly, Local 148 contends that in order to es- tablish a violation of Section 8(b)(1)(A), the General 40 In my judgment , the conclusionary assertion by the General Coun- sel that this strike was "particularly violent" is unsupportable on the record made here To be sure, there are some instances of violent con- duct most of which are , apparently, mysteries to this day. However, even considering such incidents, the quantity does not come close to that one would normally expect in a community of more than 4000 persons even in normal times Counsel has the burden of showing that the list was pub- lished with the specific purpose of encouraging the un- protected activity which even it admits occurred, i.e., the threatening letters and telephone calls. Local 148 argues that no such showing has been made here. Ac- cording to Local 148, the fact that the 1983 SCABS list publication may have exerted pressure on nonstriking employees does not, standing alone, convert the publica- tion of the list into an unfair labor practice. The facts in Austin show that the union commenced a drive to sign up 100 percent of the employees already represented by the union. After Austin and others re- fused to join, their names were published in the union's monthly newsletter under a column entitled "List of Scabs." Austin protested-and happened to mention that he did not know the meaning of the word scab . In a sub- sequent issue of the union's newsletter, the scabs' list was preceded by a publication of Jack London's well-known literary piece entitled "SCAB." Austin and others assert- ed that following this publication , co-workers and others became hostile toward them which in turn caused them to be tense, nervous and prone to frequent headaches. They sued in a Virginia state court for defamation and were awarded $165,000 in damages. The Virginia Su- preme Court affirmed, but the United States Supreme Court reversed, holding that the use of the epithet "scab," which was literally and factually true in Austin's case, is commonplace in labor disputes and protected under Federal labor law. Obviously the publication in Austin as well as here was intended in part to evoke a form of retribution and in- timidation against those engaged in conduct which was not approved by the unions involved. In the context of a labor dispute the label "scab" is frequently designed to ostracize those who are deemed disloyal to the common cause. But the Austin holding that such a publication is activity protected by federal law suggests-as Local 148 argues-that something more must be shown before an unfair labor practice finding is warranted . Thus, the Austin court stated: But Linn [v. Plant Guards, 383 U.S. 53 ( 1966)] rec- ognized that federal law gives a union license to use intemperate, abusive or insulting language without fear of restraint or penalty if it believes such rheto- ric to be an effective means to make its point. Indeed, the Court observed that the use of this par- ticular epithet is common parlance in labor disputes and has specifically been held to be entitled to pro- tection of Section 7 of the NLRA, 383 U.S. at 60- 61. The General Counsel's argument that the additional pub- lication of the phone numbers and addresses of some nonstrikers on the 1983 SCABS list causes the list to lose its protection is difficult to rationalize. Clearly, the union in Austin and the Respondents here wanted their adher- ents to pressure those employees who were undermining official union policy ; both the union in Austin and Re- spondents here undoubtedly knew , anticipated and hoped for some form of communication. In Austin, however, the employees were not on strike and hence they were in AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) 991 a position to encounter each other on a daily basis at the work place . Because of the strike here, the opportunity for employees to communicate at the workplace did not exist. Therefore, if Local 148 wanted the strikers to com- municate with the nonstrikers-as is assumed-its alter- natives were to publish the phone numbers and addresses of the nonstrikers known to it or leave the method of communication to chance. The General Counsel's argument seems to assume that Local 148 must leave communication to chance princi- pally because some of those on the 1983 SCABS list re- ceived threatening phone calls and letters from anony- mous individuals . That argument is untenable . If a con- nection is assumed between the publication of the 1983 SCABS list and those who received threatening phone calls and letters, similar evidence should be sufficient to hold the mere publication of the nonstrikers' names enough to constitute an unfair labor practice for, as Local 48 argues, once the names of nonstrikers are pub- lished there are a variety of ways addresses and tele- phone numbers may be obtained. Yet, both Austin and Linn make it plain that the publication of the names of nonstrikers is protected conduct. Certainly it would be reprehensible and despicable-as well as an unfair labor practice-if the Respondents sub- orned the anonymous threats received by the nonstriking employees here . But, to hold that the Respondents did so by publishing names, addresses and telephone numbers of the nonstrikers requires an inference unsupported by any substantial evidence. On the contrary, the evidence elicit- ed by the General Counsel seems to establish that there is no clear pattern linking the anonymous, unprotected conduct to the publication of the 1983 SCABS list. The misspelled street address on the envelope addressed to the McGoldricks (not mentioned in General Counsel's argument) is the only clear link . But the fact that the writer linked McGoldrick and Hill as spouses is evidence that the writer was acquainted with their situation by in- dependent means . Further detracting from the link which the General Counsel sees is the fact that Washington re- ceived phone threats even though her number was not published by Local 148 and Issacs received disturbing calls even before the list was published . And the fact that Issacs was told by some unknown individual when she called the Local 148 hall that the purpose of publishing the list was to promote threats and violence is inadequate to prove Local 148 harbored an unlawful motive. Simply put, the General Counsel's evidence concerning the un- protected conduct lacks proof of agency. Accordingly, as there is no significant evidence of a nexus between the unprotected anonymous conduct and the publication of the 1983 SCABS list even with the names and addresses of some of the nonstriking employ- ees listed thereon, I conclude that the General Counsel has failed to prove that Respondents violated Section 8(b)(1)(A) by that publication. I do not credit the evidence proffered by the General Counsel in support of the remaining two allegations con- sidered in this section. The threats purportedly made to Roberts are denied by both Plunkett and Cibulskis. By the time of the hearing, Roberts professed a lack of recall concerning every detail contained in the 1 Febru- ary 1984 written statement on which the General Coun- sel relies. As a witness, Roberts left the impression that he was tailoring his testimony to avoid any possible in- consistency or damage to any side . To do so, Roberts seized upon the lack-of-recall tactic. Compared to other witnesses, Roberts' lack of memory was extreme. His background and strike experience convinces me that it should have been otherwise. Roberts was at one time a member of Local 148 RAP caucus, an indicator that he was an active, involved UAW member. Roberts joined the strike at its inception and remained on strike for nearly 15 weeks . By contrast his wife, Barbara Roberts, who is also a McDonnell- Douglas unit employee , did not join the strike at all. These circumstances strongly suggest that the 1983-1984 strike was a period of extreme torment and anxiety for him. Toward the end of the strike, Roberts returned to work briefly and then rejoined the strike for an equally brief period. His return to the strikers' ranks was high- lighted by an appearance at a Local 148 meeting where he sought to mollify his fellow strikers by pleading that he returned to work because he was plagued with money problems, by reporting activities he observed while inside the plant, and by urging the strikers to remain steadfast to their cause . Shortly thereafter, Roberts re- turned to the plant to give the 1 February 1984 state- ment to security personnel and then abandoned the strike a second time to return to work. This inconsistent course suggests that Roberts' 1 February statement may have been designed to provide a justification for his equivocal and erratic conduct . The chronology of Roberts' con- duct between his initial abandonment of the strike and the time he gave his 1 February statement certainly sup- ports an inference that the one of the statement's pur- poses was to explain his absence to McDonnell -Douglas officials. For these reasons, there is a compelling cause to doubt the reliability of the 1 February statement. As Roberts failed to favorably impress me as to his truth and veracity as a witness, and as no evidence was adduced to buttress the reliability to the 1 February statement, I find that the General Counsel has failed to prove that the complaint allegations relating to threats by Plunkett and Cibulskis by a preponderance of reliable evidence. Accordingly, I shall recommend that those al- legations in the complaint be dismissed. Likewise, the allegation that Berghoff solicited Vin- cent Bellone to commit acts of violence against a non- striker is not supported by credible evidence. Bellone's demeanor while testifying was unimpressive and uncon- vincing. His explanation of his undercover activities for McDonnell-Douglas security officials during the course of the strike was implausible and strange . Plainly, Be]- lone was a paid informer. His testimony concerning his double-agent activities raises insurmountable questions about his truthfulness. By contrast I found the denials by both Kennedy and Berghoff to be credible. With respect to Kennedy, the General Counsel makes much of the fact that Kennedy testified that he was not present for all of several casual sessions which occurred in Berghoffs office and which 992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD were attended by Bellone . However, it was Bellone who placed Kennnedy in attendance at the time the purported threats occurred. Moreover, Berghoffs claim that he was suspicious of Bellone is consistent with Bellone 's activi- ties on behalf of McDonnell-Douglas security officials and lends credence to BerghofFs claim that he was cau- tious around Bellone . Accordingly, as I cannot credit Bellone's testimony concerning the solicitation to commit violence by Berghoff, I find that the General Counsel has failed to prove those allegations of the complaint with credible evidence and I shall therefore recommend that allegation be dismissed. 4. The dues issue a. The pleadings and evidence The complaint alleges that in August 1984 Respond- ents threatened to seek the termination of its employee- members who worked during the months of November and December 1983, and January 1984 without paying union dues pursuant to the union-security agreement then in effect between the UAW and McDonnell-Douglas.41 The evidence shows that in March 1984 Berghoff di- rected a letter to the Local 148 members which states in pertinent part, as follows: UAW Local 148 is certified by the National Labor Relations Board to represent those jobs iden- tified in our bargaining unit. Regardless of whether you have signed a letter resigning from the Union, you are still occupying a bargaining unit job. As a condition of employment, you are contractually re- quired to be a member of UA W Local 148 to maintain your employment. The UAW International Constitution requires every member pay two hours due for each month in which they were scheduled to work 40 hours. Any member who fails to do so becomes "delinquent" and is automatically suspended from the Union. (See Art. 16, Sect. 8, page 32 of UAW Constitu- tion.) This applies to any member who worked during the strike. Delinquent members may reestablish "good standing" status by paying UAW Local 148 the re- quired two hours dues for each month in which they were scheduled to work 40 hours, plus a $20 reinstatement fee. However, it should be understood that reestablishing "good standing" does not pre- clude one from having charges filed against them by their fellow Union members for working during the strike. [Emphasis added.] Subsequently, in late April 1984 another letter was di- rected to the UAW members and signed by Raymond Majerus. That letter states in pertinent part as follows: In accordance with an understanding reached on April 6, 1984 between Local 148 leadership and the •' As will be seen, there is a wide variation between the date alleged in the complaint and the proof adduced by the General Counsel. That fact is of no moment as the issue was fully litigated. International Executive Board, one of the items agreed to on a voluntary basis was that those mem- bers who had worked 40 hours during the month or months of November, 1983; December, 1983; and/or January, 1984, and failed to pay dues for that period worked, would be offered an opportuni- ty to pay such dues and a reinstatement fee to the International Union. The following arrangements have been made to provide you with a reasonable opportunity to pay such amounts to the International Union between the hours of 6:00AM and 6 :00PM at Plant Gates 6 and 813 on MONDAY, APRIL 30, and TUES- DAY, MAY 1, 1984. Members preferring to pay their dues directly to the Local Union may do so . Those members desir- ing to pay directly to the International Union's Re- gional Office may do so by mailing your dues and reinstatement fees by check or money order payable to Local Union 148, to Region 6, UAW, 5150 East Gage Avenue, Bell, CA 90201. We want to assure you that the necessary ar- rangements have been made to protect each member of the Local Union. All members paying their dues will be given an official receipt at the time the dues are paid. Those members mailing their payments to the Regional Office will be sent an offi- cial receipt by return mail. We would also urge you to pay your dues by check or money order, if possible. The International Auditing Department will provide duplicate copies of your receipts to Local 148 so that you may be properly credited for the payment of your dues and reinstatement fees. Enclosed in each letter sent under Majerus' signature was a small card showing the exact total of dues and re- instatement fee deemed due and owing. As stated in the letter, an international representative was posted in a parking lot inside the McDonnell-Doug- ]as property in a trailer for the purpose of collecting those dues claimed delinquent by the Respondents. There is evidence that several UAW members availed them- selves of this opportunity to pay dues for the months of November and December 1983 and January 1984. In August 1984, Local 148 newspaper Air-Scoop car- ried the following article concerning dues for the three full months of the strike: For those who worked during the months of No- vember and December of 1983 and January of 1984, it's important to know that you're jeopardizing your jobs by failing to pay dues for those months. The dues are assessed , of course, at the rate of two hours pay per month, if you were scheduled to work 40 hours in the plant. Right now , those who worked and failed to pay dues for those months are suspended until they come forth with both their $20 reinstatement fee and the dues. So that no one misunderstands his obligation, let me make it clear that no provision was made in the AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) 993 current contract to exclude these people from their dues-paying obligations. The company agreed to the provision in the con- tract that calls for the termination of those who fail to pay their dues . And it agreed to make the con- tract retroactive to October 17. If the delinquent members continue to ignore those dues, as well as the $20 reinstatement fees, they are subject to dis- missal by the company. It is that simple. This report, then, constitutes a warning that the dues are owed. Our first warning was sent out in a letter to all members on March 13 . At that time we notified ev- eryone that "the UAW International Constitution requires every member pay two hours dues for each month in which they were scheduled to work 40 hours." We are currently researching our records to de- termine who owes dues and how much . Once those findings are made, the individuals will receive indi- vidual notices . If the dues are not paid , the union is obligated to notify the company in writing of the delinquency, and the company, in turn, is obligated to notify the employee. If no payment is forthcom- ing within 48 hours of the company's notice, dismis- sal of the employee is required under the contract. In early November 1984, Local 148 Financial Secre- tary Tony Gutierrez mailed letters to numerous individ- uals who worked during the strike months of November and December 1983 and January 1984 demanding dues payments for those months and a $20 reinstatement fee. The letter, labelled a final notice, concluded as follows: This letter constitutes a final notification to you from UAW Local 148. You have 30 days to comply and arrange payment. If you fail to do so, the Com- pany will be notified, in writing, that you are delin- quent. Upon receipt of such notification from the Union, the Company is contractually obligated to notify you to pay your delinquent dues and rein- statement fee within 48 hours. If you still do not pay, the Company has agreed to terminate your em- ployment. This procedure is part of the collective bargaining agreement between the Company and the Union, and has been in effect for many years. See Article V, Section 1(i) of the contract. Local 148 encourages you to pay your delinquent dues and $20 reinstatement fee to avoid losing your job. You may pay by mail, or come in person, but you only have 30 days. Gutierrez' letter was copied to UAW officials. There is no evidence any of the threats concerning continued em- ployment were ever rescinded. b. Arguments and conclusions The General Counsel alleges that the Respondents vio- lated Section 8(b)(1)(A) by threatening employees with discharge for failure to pay dues under a union-security agreement which was not in effect at the time the dues purportedly accrued. Auto Workers Local 376 (Emhart Industries), 278 NLRB 285 (1986); Teamsters Local 25 (Techwell Corp.), 220 NLRB 76 (1976); Carpenters (Campbell Industries), 243 NLRB 147 (1979). Moreover, the General Counsel points to the pertinent holding in Teamsters Local 25 that a labor organization can demand dues under threat of termination only for those periods following the actual execution of a collective- bargaining agreement containing a union -security clause even though the agreement may have a retroactive effec- tive date. The General Counsel also argues that the threats pertaining to the reinstatement fee is a separate independent violation of Section 8(b)(1)(A) although that allegation is not made in the complaint . Professional Engi- neers Local 151 (General Dynamics), 272 NLRB 1051 (1984). The General Counsel also asserts that the April letter of the UAW was a continuation of the illegal threats of discharge contained in Berghoffs March letter and, hence, the UAW is culpable for this violation along with Local 148. Local 148 proffered no argument in its brief concern- ing the union dues issue. The UAW contends that the April letter of Majerus cannot be reasonably read to threaten a loss of employment if dues were not paid for the strike months. It contends that Majerus' April letter does not contain any of the unlawful threats contained in Local 148's letters and that the UAW was under no obli- gation to repudiate the prior communication of Local 148 because the General Counsel did not establish that the UAW had knowledge of Local 148's March commu- nication. Rather, the UAW contends that Majerus' letter was designed solely to provide Local 148 members with the opportunity to voluntarily bring their dues current so they could participate as members in good standing in the upcoming elections. In rebuttal, the General Counsel contends that proof of the UAW's knowledge of Local 148 March letter is unnecessary if in fact the UAW has delegated agency status to Local 148. In any event, the General Counsel claims that the UAW's letter cannot be viewed in isola- tion of the other acts shown to have occurred with re- spect to the dues matter . For these reasons, the General Counsel asserts that the UAW letter independently vio- lates Section 8(b)(1)(A) of the Act. The cases cited by the General Counsel dictate the conclusion that the dues demand for the strike period coupled with the termination threat violated Section 8(b)(1)(A) of the Act. Although it is true that there is no direct reference in the Majerus letter-as was the case in the Local 148 letters-to the union-security agreement, the Majerus letter was published so closely on the heels of the first Local 148 letter that it served to reinforce the first Local 148 letter. Moreover, the UAW went to sub- stantial lengths to calculate the precise amount each member owed for the strike period and included that amount in its letter. Having examined the matter that closely, I find it is fair to infer that the UAW either knew, or should have known, what prior actions Local 148 had already taken to collect these dues . In addition, there is no evidence that the UAW disavowed the Gu- tierrez November 1984 demand at any time even though 994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it is plain that officials of the UAW were provided with copies of that demand. Moreover, UAW constitution, ar- ticle 16, section 11 suggests that as much as 62 percent of a member's dues plus $1 of each reinstatement fee must be submitted to the UAW by its local unions. For these reasons, and as the UAW is the certified representative of the employees involved here, I find the UAW and Local 148 are equally culpable with respect to the viola- tion found. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lend to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having concluded that Respondents violated Section 8(b)(1)(A) by certain actions, I will recommend entry of an order requiring that they cease and desist therefrom and further requiring that they take certain affirmative steps specified below to effectuate the purposes of the Act. Specifically, I have concluded that Respondents' offi- cials and agents created a general atmosphere at Local 148 encouraging members to file charges against non- strikers in violation of the amnesty provision . Because of that atmosphere, it is now impossible to determine objec- tively which charges would have been filed and which would not. Accordingly, the Respondents shall be re- quired to rescind the unlawful fines imposed on all em- ployees charged with misconduct arising from their work during the 1983-1984 strike, and to refund any money paid by those employees to the Respondents as a result of the unlawfully imposed fines, with interest com- puted in the manner prescribed in New Horizons for the Retarded.42 This requirement to refund fines with inter- est shall also include the fine equivalents paid by any member or former member pursuant to the membership resolution referred to in the April 1984 Air-Scoop bulle- tin even though that person was never actually subjected to a UAW disciplinary proceeding. The Respondents shall also be required to remove from their records any and all references to the unlawful charges resulting in the imposition of said fines, and to notify the affected employees of this action. In addition, Respondents shall be required to rescind the unlawful suspension of C. T. Griffiths and the revo- cation of his certification as a district steward . If C. T. Griffiths so requests, he is to be reinstated to his former 42 In accordance with the 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 I 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) steward's position. To the extent that C. T. Griffiths has incurred any losses as a result of the revocation of his status as district steward and the consequent loss of con- tractual superseniority, Respondents shall be required to make C. T. Griffiths whole for said losses . Backpay, if any, shall be computed in the manner specified in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest on said amounts computed in the manner prescribed in New Ho- rizons for the Retarded, supra. Respondents shall be re- quired to remove from its records any and all references to the proceedings resulting in the unlawful suspension of C. T. Griffiths and notify him in writing that it has taken such action. Respondents shall also be required to reimburse em- ployees for dues and reinstatement fees collected from nonstrikers for the months of November and December 1983 and January 1984 with interest computed in the manner specified in New Horizons for the Retarded, supra. Moreover, Respondents shall be required to reimburse each employee for the travel and other expenses incurred in defending themselves against the charges found un- lawful herein in the manner specified in Laborers District Council, 275 NLRB 278 (1985), and Machinists Local 575, 283 NLRB 881 (1986). In view of the fact that the UAW is the certified rep- resentative of the employees involved here and both the UAW and Local 148 have been held specificially respon- sible for all of the unfair labor practices found herein, the liability imposed shall be joint and several. Auto Workers Local 422, 192 NLRB 808 (197 1).43 See also Boilermak- ers Local Lodge 5, 249 NLRB 840, 849 (1980). The Respondents shall also be required to cease and desist from maintaining and giving effect to article 6, sec- tion 17, of the UAW's constitution, and to remove any and all references to that provision from their governing documents. To further implement this requirement Re- spondents shall be required to give effect to all member- ship resignations received on or after 12 September 1983. To the extent that any member submitted multiple resig- nations effect shall be given to the resignation first re- ceived. The General Counsel requests that the recommended order include a visitorial provision . In light of the mas- sive undertaking which will be required to comply with the remedy herein, I concur in that request in order to make the compliance phase of this proceeding as orderly and efficient as possible . Such efficiency is of particular importance here inasmuch as the UAW is headquartered in Detroit, Michigan , and Local 148 is headquartered in Long Beach, California. During the hearing, it was evi- dent that many of the records which will be affected by the order herein are separately maintained at the Re- spondents' respective headquarters. Finally, Respondents shall be required to post the at- tached notice in order to fully advise members of their rights and the outcome of this proceeding. 49 In addition to those factors found here to establish joint liability, it is also noted that factors 20 through 32 in Auto Workers Local 422, supra at 813 are unchanged except factor 27 is now art. 16, sec 16 AUTO WORKERS LOCAL 148 (MCDONNELL-DOUGLAS) 995 CONCLUSIONS OF LAW 1. McDonnell-Douglas Corporation is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. UAW and Local 148 are labor organizations within the meaning of Section 2(5) of the Act. 3. By maintaining and giving effect to article 6, section 17 of the UAW constitution, by breaching the strike set- tlement of 9 February 1984, and by threatening employ- ees with potential discharge for failing to pay dues for the months of November and December 1983 and Janu- ary 1984 Respondents engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforementioned unfair labor practices affect commerce within the meaning of Section 2(7) of the Act. 5. General Counsel failed to prove the remaining alle- gations considered in this decision. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed44 ORDER Respondents, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and its Local 148, their officers, agents, and representatives, shall 1. Cease and desist from (a) Maintaining and giving effect to article 6, section 17 of the constitution of the International Union and en- forcing that provision against any of its members. (b) Fining any member or former member in contra- vention of the strike settlement agreement executed with McDonnell-Douglas Corporation on 9 February 1984. (c) Suspending C. T. Griffiths from membership and revoking his certification as district steward in contra- vention of the strike settlement agreement executed with McDonnell-Douglas Corporation on 9 Feburary 1984. (d) Requiring employees of McDonnell-Douglas Cor- poration to pay dues for work performed during the months of November and December 1983 and January 1984 under express or implied threats of discharge pursu- ant to the union-security provision of the collective-bar- gaining agreement Respondents entered into with McDonnell-Douglas Corporation on 9 February 1984. (e) In any like or related manner restraining or coerc- ing employees of McDonnell-Douglas Corporation in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Remove from their governing documents the por- tion of the constitution of the International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America referred to in 1(a) above. (b) Give effect to any membership resignation received on or after 12 September 1983. (c) Rescind fines levied against members and former members which were imposed pursuant to charges filed against them after 9 February 1984 alleging misconduct for working during the strike at McDonnell -Douglas Corporation between 17 October 1983 and 9 February 1984. (d) Jointly and severally refund monies paid by mem- bers and former members in payment of the fines re- ferred to in 2(c), above, and any monies paid in lieu of fines by members or former members not so charged, with interest, as specified in the remedy section. (e) Reinstate C. T. Griffiths to membership, certify him to his former position as district steward, if request- ed by C. T. Griffiths, and jointly and severally make him whole for any losses incurred by him as a result of his decertification as district steward in the manner speci- fied in the remedy section. (f) Jointly and severally make C. T. Griffiths, and the members and former members described in 2(c ) above, whole for any loss of earnings, benefits, travel expenses and any other expenses incurred as a result of their need to defend themselves against the charges unlawfully pre- ferred against them. (g) Expunge from their records any references to the unlawful charges, proceedings and fines imposed against C. T. Griffiths, and those members or former members described in 2(c) above, and inform them, in writing, that such action has been taken. (h) Jointly and severally refund to any member or former member all dues and reinstatement fee payments for the months of November and December 1983, and January 1984 with interest, as specified in the remedy section of this decision. (i) Preserve and, on request, make available to the Board or its agents for examination and copying , all dues payment records, fine collection records, membership records and reports, and all other records necessary to analyze the amount of dues and fines refundable under the terms of this Order. (j) Post at their offices and meeting hall in Long Beach, California, copies of the attached notice marked "Appendix."45 Copies of the notice, on forms provided by the Regional Director for Region 21, after being signed by the Respondents' authorized representatives, shall be posted by the Respondents immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered , defaced, or covered by any other material. (k) Sign and return to the Regional Director sufficient copies of the notice for posting by McDonnell-Douglas Corporation, if willing, at all places where notices to em- ployees employed in the collective-bargaining unit affect- ed by this order are customarily posted. 44 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 45 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 " 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1) Notify the Regional Director in writing within 20 days from the date of this order , what steps have been taken to comply. For the purposes of determining or se- curing compliance with this Order, the Board, or any of its authorized representatives, may obtain discovery from the Respondents, their officers, agents, successors, or as- signs, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States Court of Appeals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the court.