Newspaper Guild Of New York, Local 3, The News-Paper Guild, Afl-Cio, Clc

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Newspaper Guild of New York, Local 3, The News- paper Guild, AFL-CIO,CLC and The New York Times Newspaper Division of The New York Times Company. Case 2-CB-7696 26 September 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 17 April 1981 Administrative Law Judge Howard Edelman issued the attached decision The Respondent filed exceptions and a supporting brief The General Counsel also filed exceptions and a supporting brief The Respondent and the General Counsel each filed answering briefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order' as modified We agree with the judge that the Respondent cannot, pursuant to its constitutional provision pro- hibiting resignations or withdrawals during a strike or at a time when a strike appears imminent, law- fully impose fines on members who resigned and returned to work during the course of a strike The judge found that the Respondent's constitutional provision was vague, without objective standards, and arbitrary and, thereby imposed invalid restric- tions on the right to resign Subsequent to the issu- ance of the judge's decision, the Board, in Machin- ists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984), held that any restrictions placed by a union on its members' right to resign are unlawful It is for the reasons set forth in Neufeld Porsche- Audi that we here adopt the judge's findings 2 However, while we agree that the Respondent vio- lated Section 8(b)(1)(A) by instituting charges and levying fines against those employees employed by The Times who submitted resignations to the Re- spondent and thereafter crossed the Respondent's picket line, some clarification is necessary The em- ployees who resigned from the Respondent and re- turned to work may be divided into two groups ' The Respondent has requested oral argument The request is denied as the record, exceptions, and bnefs adequately present the issues and the positions of the parties 2 Member Zimmerman agrees that the Union by its enforcement of a rule restncting members from resigning or withdrawing dunng a stnke or a lockout or at a time when a strike or lockout appears imminent vio- lated Sec 8(b)(1)(A) However, he finds the violation only for reasons expressed by the Board plurality in Machinists Local 1327 (Dalmo Victor), 263 NLRB 984 (1982), and his concurring opinion in Neufeld Porsche Audi, supra (1) those employees who returned to work for the Employer during the strike after their resignations from union membership had been received by the Union and (2) those employees who returned to work for the Employer before their resignations had been received With respect to the employees in group (1), the evidence establishes that they were brought up on charges and fined for conduct which occurred after their effective resignations in violation of Section 8(b)(1)(A) As to group (2) em- ployees, we do not find that the Respondent violat- ed the Act by instituting charges or levying fines against members for preresignation conduct 3 We therefore conclude that only the portion of the fine which is attributable to the employees' postresigna- tion crossing of the picket line should be rescind- ed 4 We do not agree with the judge that the Re- spondent's refusal to accept the resignations of em- ployees did not violate Section 8(b)(1)(A) of the Act In reaching his decision, the judge relied on Graphic Arts Local 32B (George Banta Co ), 250 NLRB 850 (1980) Subsequent to the judge's deci- sion, the Board, in Typographical Union (Register Publishing Co ), 270 NLRB 1386 (1984), overruled George Banta Co, and held that a union's refusal to accept the resignation of its members was an inde- pendent violation of Section 8(b)(1)(A) of the Act For the reasons set forth in Register Publishing, we find that the Respondent violated the Act by refus- ing to accept its members' resignations Finally, in accord with Neufeld Porsche-Audi we shall require that the Respondent cease and desist from maintaining restrictions on resignations and expunge the provision from its governing docu- ments 5 AMENDED CONCLUSIONS OF LAW Add the following as paragraph 3 to the judge's Conclusions of Law and renumber the subsequent paragraphs accordingly "(3) The Respondent violated Section 8(b)(1)(A) of the Act by refusing to accept employees' resig- nation of membership" ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- 3 NLRB v Allis Chalmers Mfg Co, 388 U S 175 (1967) 4 The record does not clearly establish the date each employee crossed the picket line to return to work or the date that the Respondent re ceived letters of resignations from these employees We will therefore leave that determination to the compliance stage of this proceeding 5 Engineers & Scientists Guild (Lockheed California Go), 268 NLRB 311 (1983) 272 NLRB No 64 NEWSPAPER GUILD LOCAL 3 (NEW YORK TIMES) 339 spondent, Newspaper Guild of New York, Local 3, The Newspaper Guild, AFL-CIO, CLC, its offi- cers, agents, and representatives, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(a) and re- letter the subsequent paragraphs "(a) Maintaining in its governing documents arti- cle X, section 15, of the constitution of the News- paper Guild to the extent it provides "Any offer to withdraw or to resign from membership in the Guild other than for the reasons set forth in Section 13 of this Article shall be submitted in writing to the governing board of the Local together with the reasons, in detail, for such contemplated withdrawal or resignation The governing board of the Local shall thereupon inquire into the cause and vote on whether such withdrawal or resignation shall be accepted or rejected Any acceptance shall always be conditioned upon the full pay- ment of all financial obligations due and owing to the Guild Upon the rejection of any offer to withdraw or resign, the membership obliga- tions of the member making such offer shall continue in full force and effect A member may appeal rejection of his or her resignation to the Local membership A copy of the offer to withdraw or resign together with the action taken by the Local thereon, shall be forwarded to the IEB Such action shall not become final until approved by the IEB No resignation or withdrawal may be accepted during a strike or a lockout or at a time when a strike or lockout appears imminent" 2 Substitute the following for paragraph 2(a) "(a) Vacate, rescind, and expunge from its records all charges and rescind any and all fines or portions thereof levied against those employees who submitted resignations of their membership in the Respondent during the strike against The Times which began on 9 August 1978 and conclud- ed on 5 November 1978, where the entire amount of the fines or portions thereof are attributable to the employees' postresignation crossing of the picket line" 3 Insert the following as paragraph 2(d) and re- letter the subsequent paragraphs "(d) Remove from its governing documents the portion of article X, section 15, of the constitution of the Newspaper Guild set forth above" 4 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain in our governing docu- ments article X, section 15, of the constitution of the Newspaper Guild to the extent it provides Any offer to withdraw or to resign from mem- bership in the Guild other than for the reasons set forth in Section 13 of this Article shall be submitted in writing to the governing board of the Local, together with the reasons, in detail, for such contemplated withdrawal or resigna- tion The governing board of the Local shall thereupon inquire into the cause and vote on whether such withdrawal or resignation shall be accepted or rejected Any acceptance shall always be conditioned upon the full payment of all financial obligations due and owing to the Guild Upon the rejection of any offer to withdraw or resign, the membership obliga- tions of the member making such offer shall continue in full force and effect A member may appeal rejection of his or her resignation to the Local membership A copy of the offer to withdraw or resign together with the action taken by the Local thereon, shall be forwarded to the IEB Such action shall not become final until approved by the IEB No resignation or withdrawal may be accepted during a strike or a lockout or at a time when a strike or lockout appears imminent WE WILL NOT restrain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act, by refusing to accept or acknowledge the ef- fectiveness of resignations from members and by instituting charges or by imposing fines on employ- ees who, after submitting resignations of their membership in Newspaper Guild of New York, Local 3, The Newspaper Guild, AFL-CIO, CLC, herein called The Guild, cross the picket line to go to work at the The New York Times Newspaper, Division of The New York Times, herein called The Times, or any other employer WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of rights guaranteed them by Section 7 of the Act WE WILL vacate, rescind, and expunge from our records all charges and rescind any and all fines or portions thereof levied against all employees who submitted resignations of their membership in The Guild during the strike against The Times, which 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD began on 9 August 1978 and concluded on 5 No- vember 1978, where the entire amount of the fines or portions thereof are attributable to the employ- ees' postresignation crossing of the picket line WE WILL forthwith notify each of the aforemen- tioned employees in writing that said charges and fines heretofore imposed upon him or her have been vacated, expunged, or rescinded, and that we will take no action to collect said fines WE WILL refund to each of the aforementioned individuals all moneys they may have paid to us as a result of the aforesaid fines with interest thereon as set forth in the section hereof entitled "The Remedy" WE WILL remove from our governing docu- ments the portion of article X, section 15, of the constitution of the Newspaper Guild set forth above NEWSPAPER GUILD OF NEW YORK, LOCAL 3, THE NEWSPAPER GUILD, AFL-CIO, CLC DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge This case was tried before me on May 19 and 20, and July 5 and 24, 1980, in New York, New York Complaint in this case issued on May 1, 1979, and an amended complaint issued on February 11, 1980 These complaints were based on an unfair labor practice charge filed by The New York Times Newspaper Division of The New York Times Company (the Times or the Charging Party), on March 2, 1979, and an amended charge filed by The Times on October 31, 1979 The complaint alleges, inter aim, that Newspaper Guild of New York, Local 3, The Newspaper Guild, AFL-CIO (collectively Respondent and Respondent Local 3 and Respondent Guild, respectively),' violated Section 8(b)(1)(A) of the Act by refusing to except resig- nations of members of Respondent and by instituting charges and imposing fines on members of Respondent who attempted to resign membership and thereafter crossed a picket line established by Respondent in con- nection with a labor dispute between Respondent, the Times, the New York Daily News (the News), and the New York Post (the Post) Excellent briefs were filed by counsel for the General Counsel and counsel for Respondent On consideration of the entire record, the briefs, and my observation of the demeanor of the witnesses, I make the following ' Respondent Guild is the International Union and Respondent Local 3 is a local thereof FINDINGS OF FACT A Jurisdiction The Times is a New York corporation which main- tains its principal office and place of business in New York, New York, where it has been at all times material engaged in the publication, circulation, and distribution of The New York Times morning, daily, and Sunday newspapers of general circulation In the course and con- duct of its business operation described above, The New York Times annually derives gross revenues in excess of $1 million Additionally, The Times holds membership in, or subscribes to, various interstate news services, in- cluding the Associated Press, publishes various nationally syndicated features, and advertises various nationally sold products including General Motors Corporation automobiles Additionally, the Times, in the course and conduct of its business operations described above, annu- ally purchases and receives at its New York, New York facility, newsprint ink and other related goods and mate- rials valued at and in excess of $50,000 directly from points located outside the State of New York Respondent admits, and I find that The Times is and has been at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Respondent admits, and I find that Respondent is now and has been at all times material herein, a labor organi- zation within the meaning of Section 2(5) of the Act B Background Respondent has been the exclusive collective-bargain- ing representative of a unit comprising certain Times' employees for approximately 40 years Respondent also represents a similar unit of employees at the News and the Post 2 Respondent's practice for at least the past 24 years has been to send by mail to each new Times' employee within its jurisdiction, a membership application and a letter welcoming the employee and advising him or her that Respondent's union-security clause requires the indi- vidual to begin paying dues or obtain membership in Re- spondent no later than 30 days after employment Re- spondent's welcoming packet also includes a checkoff-au- thorization card and a self-addressed stamped return en- velope Respondent's membership application described above, specifically states in bold faced type "I shall abide by the Constitution and By-Laws of (Respondent) "3 Respondent contends that when a new member begins paying dues, whether pursuant to checkoff authorization or direct payment, a copy of Respondent Guild's consti- tution, Respondent Local 3's bylaws and a dues-deduc- 2 The collective bargaining agreement between Respondent and The Times covers a unit comprising a large number of employees in the echto nal, commercial, and building maintenance departments in a multitude of specific job classifications The specific unit coverage is not relevant to a decision in this case and is not set forth herein 3 All employees whose offers of resignation are at issue in this case filled out the above membership applications pnor to becoming Respond- ent's members NEWSPAPER GUILD LOCAL 3 (NEW YORK TIMES) 341 tion card are mailed to the new member Respondent produced several witnesses who testified that this is the usual procedure followed by Respondent as to new members The General Counsel on the other hand produced wit- nesses who testified contrary to Respondent's witnesses They testified in substance that, although they were members of Respondent, they never received a copy of Respondent Guild's consititution or Respondent Local 3's bylaws In view of my decision in this case described below, I find it unnecessary to resolve this issue of credibility It is undisputed that copies of Respondent Guild's con- stitution and Respondent Local 3's bylaws are available to all members at Respondent headquarters Additional- ly, Respondent's office at The Times also contains copies of the constitution and bylaws, which are available on request to any member of Respondent C Respondent Constitutional Provisions Relating to Resignation Article X, section 15 of Respondent's constitution has provided since an amendment in 1974, as follows An offer to withdraw or to resign from membership in the Guild other than for the reasons set forth in Section 13 of this Article shall be submitted in writ- ing to the governing board of the Local (Respond- ent Local 3), together with the reasons, in detail, for such contemplated withdrawal or resignation The governing board of the Local (Respondent Local 3) shall thereupon inquire into the cause and vote on whether such withdrawal or resignation shall be accepted or rejected Any exceptance shall always be conditioned upon the full payment of all financial obligations due and owing to the Guild (Respondent Guild) Upon the rejection of any offer to withdraw or resign, the membership obligations of the member making such offer shall continue in full force and effect A member may appeal rejec- tion of his or her resignation to the Local member- ship A copy of the offer to withdraw or resign to- gether with the action taken by the Local thereon, shall be forwarded to the IEB Such action shall not become final until approved by the IEB No resigna- tion or withdrawal may be accepted during a strike or a lockout or at a time when a strike or lockout appears imminent (Emphasis added ) The "Imminency" provision was an amendment to an existing provision in Respondent's constitution which was enacted as of 1973 The 1974 amendment to Re- spondent's constitution was set forth in full in the Guild Reporter, Respondent Guild newspaper and in the Front Page, Respondent Local 3 newspaper All members of Respondent received copies of both newspapers by mail 4 4 Amendments to Respondent's constitution are routinely set forth in Respondent newspapers Article XIX, section 2 of Respondent's constitution provides in relevant part Section 2 (a)—A strike may be called by the gov- erning body of a local if the Unit involved has voted approval In cases where more than one Unit may be called on strike, all those Units shall be con- sidered as one Unit (b)—Where more than one bargaining unit is con- tained within the constitutional Unit, the strike vote shall be taken in the bargaining units involved only in the following cases (1) the bargaining unit in- volved is negotiating an internal guild contract, (n) the contract of the other bargaining unit not imme- diately involved is not open (or will not be open within 60 days) for renegotiation at the time the strike vote in the bargaining unit immediately in- volved is taken (c)—In the event that a union or other than a (Respondent Local) strikes a shop in which that union represents employees or if such strike appears imminent, or if such a union declares itself locked out and pickets, then as an alternative to proceeding under Article XIX, Section 2(a), the Representative Assembly or Executive Committee if there is no Representative Assembly of (Respondent Local) is representing employees in that shop may endorse the strike, or recognize the lockout, and direct its members not to cross the picket lines of the striking or locked out union nor to work in or for the shop which is on strike or locked out Thus combining article X, section 15 with article XIX, section 2 of Respondent's constitution, the authorized strike referred to in article X, section 15 can be (1) pri- mary, in that the dispute is directly between Respondent and the employer, and the Unit has approved a strike, or (2) in sympathy, in that the dispute is between the em- ployer and another union and Respondent's representa- tive assembly has directed its members not to cross any picket lines established at the employer Similarly, a lockout can be either (1) primary, in that the employer is locking out or threatening to lock out Respondent, or (2) in sympathy, in that the employer is locking out, or threatening to lock out another union and Respondent has directed its members to respect the lock- out In connection with the last sentence of article X, sec- tion 15 of Respondent's constitution, "No resignation or withdrawal may be accepted during a strike or lockout or at a time when a strike or lockout appears imminent," Harry Fisdell, vice president of Respondent, testified that there is no set formula or mechanical means to determine when a strike is "imminent" According to Fisdell's testi- mony, in any set of negotiations the imminency of a strike always exists Fisdell testified that imminency, as to a strike or lockout in connection with Respondent and an employer would generally be determined by the Re- spondent Guild executive board, taking into account the present state of negotiations with the employer coupled with the prior negotiating history Imminency, as to a 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike or lockout in connection with another labor orga- nization would be determined by Respondent Guild ex- ecutive board based on the representations of officials of such other labor organizations Based on Fisdell's testi- mony, I conclude that a strike or lockout is "imminent" whenever Respondent, in its judgment, determines it is "imminent" This conclusion is reinforced by the state- ment of Respondent Chairperson Peterson in 1974, during the second report of the constitution committee, at the time the "imminency" language was inserted in Respondent's resignation provision (art X, sec 15) that the "imminency" language was designed to and did "give the local (Respondent Local 3) plenty of leeway in making its decision It can judge when a strike or lock- out appears imminent, I think" D The 1978 Collective-Bargaining Negotiations On March 30, 1978, the then current collective-bar- gaining agreement between The Times and Respondent expired The term of this agreement was March 31, 1975, through March 30, 1978 Negotiations for a new agree- ment were held on February 9 and on March 9, 1978 Respondent's view of the negotiations was that they were going badly This view was reported to Respond- ent's members through various Respondent shop publica- tions, which were distributed to Respondent members employed by The Times and posted on The Times bulle- tin board throughout the building Additionally, Re- spondent's view of negotiations was reported in Re- spondent's newspaper described above During this same period, early March 1978, the drivers union representing drivers employed by the Times, the News, and the Post informed Respondent that it would strike if it did not have a new contract with the above publications by March 30, 1978, when its current con- tract expired As a result of this report by the drivers union, Respondent voted to support a drivers' strike and/or to recognize a lockout About March 13, 1978, Respondent, in connection with its negotiations with the Times, mailed to the Times' unit members letters notifying them that there was to be a meeting on March 23, 1978, the purpose of which was to authorize a strike against the Times Re- spondent also distributed and posted shop papers to notify unit members of this strike authorization meeting On March 23, 1978, Respondent, at a meeting, duly authorized a strike against The New York Times Re- spondent publicized such strike authorization to the Times' unit members in its March 24, 1978 shop paper, The Times Topics, which were posted and distributed to unit members E Respondent's Rejection of Members' Resignations During the period March through May 1978, many of Respondent's members employed by The Times submit- ted written letters of resignation of membership to Re- spondent On May 15, 1978, Respondent's executive committee met for the first time in connection with the current col- lective-bargaining agreement negotiations At this meet- ing Respondent's executive committee decided that all resignation letters received prior to March 23, 1978 (the date of Respondent's strike authorization vote), would be accepted, and all resignations received on or after March 23 would be rejected Pursuant to such decision, on May 18, 1978, Respond- ent sent letters to all members who had submitted letters of resignation signed by Ray Mann, secretary-treasurer of Respondent, informing them of Respondent's decision as to whether or not their resignations were accepted or rejected According to Fisdell, Respondent's vice presi- dent, the sole factor used by Respondent in determining whether to accept or reject resignations, was the last sen- tence of article X, section 15 in Respondent's constitu- tion referring to the "imminency" of a strike or lockout Respondent sent approximately 55 letters dated May 18 rejecting resignations submitted by members between March 23 and May 18 The text of these letters was as follows The Executive Committee of the Newspaper Guild of New York, Local 3, TNG (The Newspa- per Guild), AFL-CIO, CLC convened on Monday evening, May 15, 1978 to consider your offer to resign from membership in the Guild, and voted to reject your resignation based on the language of Ar- ticle X of the constitution of The Newspaper Guild, AFL-CIO, CLC as amended, which provides No resignation or withdrawal may be accepted during a strike or lockout, or at a time when a strike or lockout appears imminent Please be advised that in accordance with Article X of the constitution that "a member may appeal rejection of his or her resignation to the local mem- bership" Should you wish to appeal the action of the executive committee, please notify me by letter, so that I may arrange to have your appeal made to the local membership Please be advised that as a member of the Guild and a Times employee in the Guild's bargaining unit, you are required to continue to pay union dues and other financial obligations to the Guild in ac- cordance with the applicable provisions of the col- lective bargaining agreement between the Times, News and the Guild On May 23, 1978, Respondent had its regular execu- tive committee meetings, at which time the Guild reject- ed three additional resignations submitted between May 15 and 23 Although each member informed in the individual re- jection letters of his or her right to appeal the executive committee's decision to the membership, none of the members whose resignations were rejected exercised such appeal 5 5 The General Counsel introduced evidence which established that Rose Edwards, Respondent Local 3 representative had sent letters to an unknown number of employees during the period March 1978 to May 15, 1978, rejecting their resignations The letters sent by Edwards were simi- lar to those sent by Ray Mann descnbed above In view of a stipulation Continued NEWSPAPER GUILD LOCAL 3 (NEW YORK TIMES) 343 On August 9, 1978, the pressmen, unable to obtain a contract, went out on strike at the Times, the News, and the Post On August 7, 1978, prior to this strike, Re- spondent held an emergency meeting to determine its re- sponse to the impending strike or lockout in connection with the pressmen's dispute At this meeting, Respondent decided that it would support the pressmen in the event of a strike or lockout by refusing to cross the picket line and/or to recognize any lockout against the pressmen by refusing to report to work Respondent notified its mem- bers of its action in a citywide bulletin dated August 8, 1978 The pressmen went on strike on August 9 Re- spondent honored the pressmen's picket line The press- men's strike continued through November 5, 1978 Respondent itself did not have a contract with The Times, and on November 4 and 5, while striking in sup- port of the pressmen, engaged in a primary strike against The Times which strike ended with Respondent's ratifi- cation of an agreement reached between Respondent and The Times on November 5, 1978 Between the period of May 18 and November 5, 1978, Respondent received approximately 51 additional letters of resignation from members Respondent sent a letter in response to each member, similar to the May 18 Ray Mann letters, rejecting each resignation on the ground that the constitution restricts resignations while a strike is in progress These letters were signed by Ray Mann On and after August 9, many employees who had sub- mitted letters of resignation to Respondent, but whose resignations were rejected, as described above, crossed the picket line and worked for The Times On February 1, 1979, Respondent sent letters to all members who had crossed the picket line during the above strike informing them that charges had been filed against them for crossing the picket line There were ap- proximately five members whose resignations were re- jected but who did not cross the picket line 6 On various dates thereafter, Respondent sent all charged members notices of hearing on the charges which had been filed against them Following the hear- ings which took place, Responent notified the charged members of the decision by the trial board Approximate- ly 88 members received decisions from Respondent in- forming them that the trial board found them guilty and imposed as a penalty a fine, the amount of which consist- ed of all moneys earned by the individual during the strike and/or lockout that took place between August 9 that all Guild members who received a Rose Edwards letter received a subsequent letter from Ray Mann communicating the executive commit tee's decision to accept or reject the member s offer of resignation and, in the absence of any evidence establishing that Rose Edwards rejected the resignation of any member not rejected by Mann, I see no relevancy in the Rose Edwards' letters This is especially true since there is no dispute but that all resignations submitted by members to Respondent after March 23, 1978, were rejected by Ray Mann 6 Art VII sec 1(e) and (f) provides in substance that working in a shop which is on stnke or where employees are locked out constitutes offenses for which union members may be disciplined The names of those individuals whose resignations were rejected and against whom charges were filed were not set forth in the complaint Such information is not necessary for a disposition or an appropnate remedy in this case and November 5, 1978 To date, no fines have been paid 7 In the spring of 1979, Respondent was notified of a labor dispute between The Times, the News, and the Photoengravers who had a single contract with both em- ployers An emergency meeting of Respodnent's repre- sentative assembly was called for on May 31, 1979, and Respondent's members were notified that the purpose of the meeting was to determine Respondent's response should a strike or lockout occur At this meeting the rep- resentative assembly directed Respondent's members at The Times and the News not to cross any picket line set up by the Photoengravers On June 4 and 5, 1979, four members submitted letters of resignation to Respondent On June 5 and 6, 1979, the Photoengravers struck the Daily News Respondent once again informed its members that Respondent supported the Photoengravers strike through a Respondent Local 3 bulletin dated June 5, 1979 Thereafter, on September 18, Respondent voted to reject those four offers of resigna- tion submitted in connection with the Photoengravers strike described above because a strike or lockout was "imminent" at the time These members were notified of Respondent's decision through a letter signed by Ray Mann The members were notified they had a right to appeal this decision To date, no member has exercised this right of appeal Respondent has taken no action whatever against the above four Guild members to en- force its constitutional provision restricting resignations when a strike or lockout is imminent or in progress Analysis and Conclusion A The Imposition of Fines by Respondent on Employees Engaged in Strike-Breaking Activity The undisputed evidence establishes that Respondent filed disciplinary charges and imposed fines on approxi- mately 88 unit employees who submitted resignations to Respondent and thereafter crossed Respondent's picket line Respondent contends that such disciplinary action was appropriate since the resignations were submitted at a time when a strike or lockout was either "imminent" or in progress and that Respondent's rejection of such resig- nation was proper and in accordance with article X, sec- tion 15 of Respondent's constitution and bylaws The General Counsel contends that article X, section 15 of Respondent's constitution, restricting resignations, is invalid and therefore employees, on submission of such resignation, could resign at will Accordingly, the impo- sition of disciplinary charges and subsequent imposition of fines on such individuals violates Section 8(b)(1)(A) of the Act The central issue to be decided is whether Respond- ent's constitutional provisions relating to resignations are lawful 7 As set forth in fn 6, such information is not necessary for an appro pnate remedy in this case 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Supreme Court, as set forth below, has left open the question as to whether a labor organization could impose lawful restrictions on a member's right to resign In NLRB v Allis Chalmers Mfg Co, 388 US 175 (1967), the Supreme Court held that a union did not vio- late Section 8(b)(1)(A) when it fined union members who crossed the union picket line during an economic strike However, the fines in this case were levied against union members who had not resigned their membership in the union at the time they crossed the picket line The court specifically left open the question of whether a union could, in the same circumstances, fine employees who merely paid periodic dues, and were not members of the union In Machinists Local 405 v NLRB, 412 U S 84, 88 (1973), and NLRB v Textile Workers Local 1029, Granite State Joint Board, 409 U S 213, 217 (1972), the Supreme Court definitively disposed of the issue concerning a union's right to apply its rules against strike breaking to members who crossed union picket lines following their resignation from the union However, these cases in- vovled provisions relating to postresignation strike break- ing, as distinguished from provisions relating to resigna- tion of membership In Granite State, supra, the Supreme Court succinctly set forth its thinking when it stated that following a members resignation from the union, the union has "no more control over the former member than it has over the man in the street" In both cases the Supreme Court found unlawful, union fines imposed on members who had resigned from the union during the course of an economic strike, despite provisions in the union constitution imposing a restriction on members to refrain from strike breaking In both Booster Lodge, supra and Granite State, supra, the union constitution and bylaws were silent on the issue of voluntary resignation from the union However, in Booster Lodge, supra, the Supreme Court recognized the issue and explicitly left open the question of the extent to which contractual re- striction on a member's right to resign may be limited by the Act The Court hinted that its answer might be dif- ferent if the union's constitution contained valid provi- sions concerning resignation, but it left the issue open While the Board has implied that a labor organization might lawfully impose reasonable restrictions on a mem- ber's right to resign, I have been unable to find any case where it has upheld such provision The Board in Machinists Local 1994 (OK Tool Go), 215 NLRB 651 (1974), concluded that the union violated Section 8(b)(1)(A) by finding members who had submit- ted written resignations to the union and thereafter crossed Respondent's picket line in violation of a clause in the union's constitution, which the Board determined was a restriction on postresignation strike breaking con- duct, rather than a restriction concerning resignation 8 g The constitutional provision involved in OK Tool is set forth as fol lows Improper conduct of a member accepting employment in any capacity in an establishment where a stnke or lockout exists as rec ognized under this constitution, without permission Resignations shall relieve a member of his obligation to refrain from accepting employment at the establishment for the duration of the stnke or lockout within 14 days preceding its commencement Where observ The Board stated by way of dicta "Whether the Lodge might lawfully have placed reasonable restrictions on the circumstances in which a member could resign, and have enforced those restrictions and strike breaking sanctions against full members who returned to work during the strike is a question which is not raised by the facts of this proceeding" Similarly in Machinists Local 1327 (Dalmo Victor), 231 NLRB 719 (1977), and Machinists Local 1871 (General Dynamics), 231 NLRB 727 (1977), cases which involved the same constitutional provision as in OK Tool, supra, the Board concluded in each case, relying on the rationale set forth in OK Tool, that the union's con- stitutional provision constituted an invalid restriction on post resignation conduct rather than on the right to resign However, in Dalmo Victor, supra, the Ninth Cir- cuit rejected as "hypertechnical," the Board's construc- tion of the union's constitution The court concluded that it was a restriction on resignation, rather than a provi- sion relating to post resignation conduct However, the Ninth Circuit did not decide the resonableness of such restriction and remanded the case to the Board for that determination NLRB v Machinists Local 1327, 608 F 2d 1219 (9th Cir 1979) This case on remand is presently pending before the Board In those cases where the Board directly has considered the reasonableness of a provision concerning resignation restrictions, the Board has, for one reason or another, found such restriction unreasonable and unlawful In Electrical Workers IUE Local 444 (Sperry Rand Corp ), 235 NLRB 98 (1978), the Board found a provision in the union's constitution relating to resignations to be invalid where the provision provided that no member could submit a resignation "during the period of a collective bargaining agreement between the union and the mem- ber's employer requiring union membership as a condi- tion of employment or during the period of an author- ized strike against the member's employer Any notice of withdrawal given less than 60 days before such author- ized strike commences, as well as any ntoice of with- drawal given during the course of such an authorized strike, shall not be effective until the conclusion of the strike, or at the end of 60 days, whichever is later" Board members Jenkins and Murphy, two of the three Board members who decided this case, noted in affirm- ing the administrative law judge that the membership resignation provision not only required submission of a 60-day advance notice, but limited resignation to times when neither a strike was in progress nor a bargaining agreement with a union shop provision was in effect They pointed out such restriction, in reality, provided no meaningful period for resignation See also Auto Workers Local 1384 (Ex-Cell-0 Corp ), 227 NLRB 1045 (1977), Auto Workers Local 647 (General Electric Go), 197 NLRB 608 (1972), where the Board found similar consti- tutional restrictions on resignation to be invalid In Typographical Union Local 650 (Daily Breeze), 221 NLRB 1048 (1975), the Board found a provision in the ance of a pnmary picket line is required, resignation shall not relieve a member of his obligation to observe the primary picket line for its duration if the resignation occurs during the period that the picket line is mantained or within 14 days preceding its establishment NEWSPAPER GUILD LOCAL 3 (NEW YORK TIMES) 345 union's constitution restricting resignations where the union rules provided that "No member may resign except on written application, stating the reason there- fore, addressed to the local union of which he is a member, and consent of the local union" Finding the union rule to be unreasonable and invalid, the Board concluded that such restrictions on resignation were vague, setting no standards for the evaluation of resigna- tion requests submitted pursuant to its terms, and gave local unions power to withhold consent in an arbitrary and capricious manner As in Daily Breeze, supra, I conclude that Respond- ent's constitutional provision concerning resignations is vague, setting no objective standards for the evaluation of resignation requests I also conclude that the effect of Respondent's provision gives Respondent the total dis- cretion to consent to, or reject resignations, in an arbi- trary and capricious manner Illustrating the vagueness and lack of objective stand- ards of Respondent's provision is the "imminency" lan- guage of the clause A member contemplating resigna- tion prior to a strike or lockout cannot look to Respond- ent's constitutional provision relating to resignations and know whether such strike or lockout is, at a particular time, "imminent," and whether he or she had a right to resign According to the thrust of the testimony of Fis- dell, the International vice president, a strike or lockout is "imminent" whenever Respondent says it is imminent Moreover, the resignation provision applies not only to strikes and lockouts involving Respondent and The Times, but to any labor organization and employer in the industry Thus, strikes and lockouts can be imminent at any time during the term of a collective-bargaining agreement between Respondent and The Times or fol- lowing the expiration of such agreement For example, resignations were rejected by Respondent, relying on the "imminency" language of Respondent's resignation pro- vision, in connection with the photoengravers strike at the New York Daily News on June 5 and 6, 1979, which took place during the duration of the present collective- bargaining agreement between Respondent and The Times That provision is arbitrary, as is illustrated by the way it was applied in the instant case Thus, members who re- signed in March and April and up to May 18 were un- aware at the time of their resignation that a strike within the meaning of Respondent's constitutional provision was "imminent" This is so because Respondent had not yet declared that such strike or lockout was imminent Indeed, it was not until May 18 that the union arbitrar- ily, and retroactively, declared the "imminent" date to be March 23, a date almost 2 months prior to such decla- ration The result of Respondent's action was that mem- bers who had resigned (assuming they had knowledge of Respondent's constitution) between March 23 and May 18 believing that no strike was "imminent" within the meaning of Respondent's constitution, since imminency had not as yet been declared, were now notified, retroac- tively that their resignations were rejected Respondent by such retroactive application of its constitutional provi- sions was able to arbitrarily prevent members from re- signing in anticipation of the impending strike or lockout For the reasons set forth above, I therefore conclude that Respondent's constitional provision is vague, with- out objective standards, and arbitrary Accordingly, I conclude such provision is unlawful and invalid Where a union's constitution or bylaws impose invalid restrictions on the right to resign, a member can resign whenever he or she wishes General Electric Co, supra Accordingly, I further conclude that by bringing up on charges and lev- ying fines on those employees employed by The Times who submitted resignations to Respondent and thereafter crossed Respondent's picket line, Respondent violated Section 8(b)(1)(A) of the Act B Whether Respondent's Members Had Notice of Respondent's Constitutional Provisions Respecting Resignations of Membership Respondent contends that new members were provid- ed with copies of Respondent's constitution and bylaws In support of this contention, Respondent produced sev- eral witnesses who testified to this effect The General Counsel, on the other hand, produced several witnesses who testified that they were members of Respondent, and that they had never received copies of Respondent's constitution on becoming members, or at any time there- after Respondent contends essentially that by the receipt of such constitution, members had notice, either actual or constructive, of Respondent's provisions relating to resi- gantion In view of my conclusion set forth above, that Respondent's provisions with respect to resignations is invalid, I need not determine whether Respondent's members received copies of its constitution or whether they had either actual or constructive knowledge of the provisions therein However, in the event the Board shall conclude that Respondent's provision concerning resig- nations is reasonable and valid, then the issue as to whether Respondent's members had notice of such pro- vision would be relevant I conclude that proper notice to a member concerning his or her right to resign re- quires that a member be able to read the provision con- cerning resignation and be able to ascertain at any par- ticular point in time exactly when he or she can resign In this connection as set forth and discussed in detail above, Respondent's resignation provision is such that one contemplating resignation cannot ascertain at any particular point in time when a strike or lockout may be "imminent" As this case illustrates, employees submit- ting resignations at a time prior to Respondent's declara- tion of "imminency" were denied the right to resign by Respondent's retroactive declaration of an imminent date Accordingly, I conclude that whether or not Respond- ent's constitutional provision with respect to resignations is valid, in view of the language of the provision itself, whether a member had actual or constructive knowledge of such provision, he or she still did not have proper notice C Respondent's Rejection of Resignations Where No Disciplinary Actions Were Instituted The evidence established that in connection with the August 9 to November 5, 1978 strike, approximately five 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees submitted offers of resignation which were re- jected by Respondent However, these employees did not cross Respondent's picket line and no charges were thereafter instituted by Respondent against these employ- ees Additionally, four members submitted resignations in connection with the photoengravers strike of June 1979, which were also rejected No disciplinary action was taken against these individual members It is alleged by the General Counsel that Respondent violated Section 8(b)(1)(A) of the Act merely by the act of rejecting such resignations, although no disciplinary action was instituted against such members The Board in Graphic Arts Local 32B (George Banta Co), 250 NLRB 850 (1980), recently decided this issue and concluded that a union does not violate Section 8(b)(1)(A) of the Act by refusing to accept validly prof- fered resignations from its members The Board stated in this regard that the proviso to Section 8(b)(1)(A) permits a labor organization "to prescribe its own rules with re- spect to the acquisition or retention of membership there- in," and therefore the Union's refusal to accept the effec- tive resignations was not a violation of the Act because it related directly to the retention of membership, citing Bookbinders Union Local 60 (Interstate Book Mfrs), 203 NLRB 732, 735 (1973) Accordingly, for the reasons set forth in George Banta Co, supra, I shall dismiss that portion of the complaint alleging as a violation of Section 8(b)(1)(A), the mere re- jection of resignation applications On these findings of fact and on the entire record, I state the following CONCLUSIONS OF LAW 1 Respondent is a labor organization within the mean- ing of Section 2(5) of the Act 2 The Times is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 3 Respondent interfered with, restrained, and coerced employees in the exercise of rights guaranteed to them by Section 7 of the Act, and thereby engaged in unfair labor practices prescribed by Section 8(b)(1)(A) of the Act by instituting charges and levying fines against vari- ous employees employed by The Times who submitted resignations of membership to Respondent and by fining such employees because said employees crossed Re- spondent's picket line at The Times premises and re- turned to work for The Times after duly submitting res- ignations of their membership in the Union The afore- said unfair labor practices are unfair labor practices af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act THE REMEDY Having found that Respondent has engaged in, and is engaging in certain unfair labor practices, it will be rec- ommended that it be required to cease and desist there- from In order to effectuate the purposes of the Act, it will also be recommended that Respondent be required to rescind and expunge from all records all charges, and to rescind all fines imposed on members in connection with the August 9 to November 5 strike at The Times, and if any employee has paid any portion of said fine to Respondent, to refund the full amount of same, together with interest as prescribed in Florida Steel Corp , 231 NLRB 651 (1977), 9 to run from the date the fines were paid until the date Respondent tenders a refund On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed' ° ORDER The Respondent, Newspaper Guild of New York, Local 3, The Newspaper Guild, AFL-CIO, New York, New York, its officers, agents, and representatives, shall 1 Cease and desist from (a) Interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, by refusing to accept validly proffered resignations from members and by instituting charges or by imposing fines on employees who, after submitting resignations of their membership in Respondent cross Respondent's picket line to go to work at the New York Times News- paper, Division of The New York Times, herein called The Times, or any other employer (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action which is found necessary to effectuate the purposes of the Act (a) Vacate, rescind, and expunge from its records, all charges and rescind any and all fines levied against all employees who submitted resignations of their member- ship in Respondent during the strike against The Times which began on August 9, 1978, and concluded on No- vember 5, 1978, and crossed Respondent's picket line to return to work for The Times (b) Forthwith notify each of the above-named employ- ees in writing that charges and fines heretofore imposed on him or her has been vacated, expunged, or rescinded, and that it will take no action to collect the fine (c) Refund to each of the aforementioned individuals all moneys they may have paid to it as a result of the aforesaid fines with interest thereon as set forth in the section entitled "The Remedy" (d) Post at its business office and all meeting halls copies of the attached notice marked "Appendix Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by Respond- ent's authorized representative, shallbe posted by Re- spondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all 9 See generally Isis Plumbing Go, 138 NLRB 716 (1962) '° 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 " 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 Na tional Labor Relations Board" shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board ' NEWSPAPER GUILD LOCAL 3 (NEW YORK TIMES) 347 places where notices to members are customarily posted Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material (e) Mail to the Regional Director for Region 2, the number of copies of the notice requested by the Regional Director for posting by the New York Times, the em- ployer being willing, in places where notices to its em- ployees are customarily posted Copies of the notices, to be furnished by the Regional Director after being duly signed by an authorized representative, shall be returned to the Regional Director (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply