CWA Local 1127

National Labor Relations Board - Board DecisionsJan 9, 1974

208 N.L.R.B. 258 (N.L.R.B. 1974)

258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Communications Workers of America , AFL-CIO, Local 1127 (New York Telephone Company) and Theresa Meyers and Robert E. Lockwood and John J. Leonbruno and Clayton E. Mitchell and David G. Martin and William H. Lane, Jr. Communications Workers of America, AFL-CIO Local 1125 (New York Telephone Company) and Josephine Baluck and Patricia A. McDermott and Robert M . Shannon . Cases 3-CB-1851-11, -15, -18, -19, -21, -22, 3-CB-1875-7, -21, and 3-CB- 1889-1 January 9, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 29, 1973, Administrative Law Judge Henry L. Jalette issued the attached Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief.[ Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,2 and conclusions3 of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondents , Communications Workers of America , AFL-CIO, Locals 1127 and 1125, Buffalo , New York, their officers, agents, and representatives , shall take the action set forth in the said recommended Order. i Respondents base requested that the Board consider their supplemen- tal exceptions and brief filed September 26, 1973, and the New York Telephone Company has opposed this request Inasmuch as the Board Rules and Regulations do not provide for the filing of such exceptions, we deny Respondents ' request. However, we have taken administrative notice of the Decision of Administrative Law Judge Benjamin K Blackburn in New York Telephone Company, 2-CB-5172, and our decision in that case has issued today , reported at 208 NLRB No 32 2 The Respondents have excepted to certain credibility findings made by the Administrative Law Judge it is the Board 's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dr) Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3, 1951). We have carefully examined the record and find no basis for reversing his findings 3 In view of the fact that the other charges in the present case are broad enough to cover the allegations of unlawful conduct against Clayton 208 NLRB No. 31 Mitchell, we need not pass on the question of whether Mitchell's own charge was barred by Sec 10(b) of the Act DECISION STATEMENT OF THE CASE HENRY L. JALETrE, Administrative Law Judge: These consolidated cases involve the legality of fines imposed by Local 1125 and Local 1127 of the Communication Workers of America, AFL-CIO, hereinafter referred to as CWA, upon employees of the New York Telephone Company I for abandoning a strike against the Company and returning to work, and the legality of demands for the repayment of strike assistance monies . The issues present- ed are whether the strike was unprotected because it began during the 60-day period preceding the termination of the contract, whether the Respondents were responsible for the strike, in the case of one of the Charging Parties whether he effectively resigned from the Union before returning to work, and in one case whether the complaint is barred by Section 10(b) of the Act. The charges in Cases 3-CB-1851-11, 3-CB-1851-15, 3-CB-1851-18, 3-CB-1851-21, and 3-CB-1851-22, were filed on May 10, 1972, by Theresa Myers, Robert E. Lockwood, John J. Leonbruno, David S. Martin, and William H. Lane, respectively, and pursuant to such charges a consolidated complaint was issued on June 13, 1972. The charge in Case 3-CB-1851-19 was filed on May 10, 1972, by Clayton E. Mitchell and complaint thereon was issued on January 31, 1973. The charge in Case 3-CB-1875-7 was filed on May 23, 1972, by Josephine Baluck, and the charge in Case 3-CB-1875-21 was filed on June 1, 1972, by Patricia McDermott, and pursuant thereto a constituted complaint was issued on June 16, 1972. The charge in Case 3-CB-1889-1 was filed on June 13, 1972, by Robert M. Shannon, and complaint thereon was issued on June 20, 1972. All of the foregoing cases were duly consolidated and heanng thereon was held on November 8 and 9 in Buffalo, New York; on December 5 in Plattsburg, New York; on December 6 in Malone, New York; on February 13, 1973, in Albany, New York; and May 1, 1973, in Lake George, New York.2 Upon the entire record,3 including my observation of the witnesses , and after due consideration of the briefs filed by General Counsel and Respondents Local 1125 and 1127, I make the following: i The New York Telephone Company was permitted to intervene on a limited basis, that is, to participate in the proceeding when officials of the Company were called upon to testify and to file a brief 2 Many other cases were also consolidated with the cases enumerated herein Settlement agreements were entered into in all but Cases 3-CB-1851-19,3-CB-1875-7,3-CB-1875-21 and 3-CB- 1889-1 and they were thereafter severed therefrom and remanded to the Regional Director for purposes of affecting compliance with the terms of the settlement agreements in Cases 3-CB-1851-11. -15, -18, -21 and -22, compliance was not effected , and the complaints therein were reconsolidated by orders dated April 10 and 26, 1973 General Counsel's motion to correct transcript , which is unopposed, is hereby granted and the motion is hereby received in evidence as AU Exh. I CWA LOCAL 1127 259 FINDINGS OF FACT I. FACTUAL BACKGROUND CWA is the bargaining representative for employees of the Bell System's in a number of separate barganung units, including a unit of plant department employees of the New York Telephone Company, the unit involved herein. Each unit is covered by separate collective-bargaining agree- ments which have different expiration dates, but all of which expire within 6 months of one another. The agreement between CWA and the New York Company wh :,h was in effect immediately preceding the events which gave rise to this proceeding had an effective date of May 22, 1967. to July 31, 1968, and provided that it was to continue in force and effect until notification of termina- tion by either party in writing at least 60 days prior to July 29, 1971. In accordance with these provisions, on May 21, 1971, CWA gave written notice to the Company of the termination of the existing agreement effective July 28, 1971, and it requested bargaining on a new agreement. Contemporaneously, CWA was involved in negotiations for new agreements with other units of the Bell System, and, as was its practice, it had selected two units as pattern setters for agreements reached in all other units. The pattern setters were Western Electric and Chesapeake and Potomac Telephone Company. On May 20, 1971, the Executive Board of CWA had voted to reject contract proposals made by the two pattern setters and had ordered a strike vote of all of the Bell System units. Mail ballots were sent to all members and CWA announced at its convention m June or July that the membership had authorized the CWA Board to call a strike and that a strike would begin on July 14, 1971. CWA began negotiations with the New York Company on July 6 and 6 bargaining sessions were held between July 6 and July 12. According to Raymond Williams, the New York Company's chief negotiator, on July 13, M. Don Sanchez, CWA area director and chairman of its bargain- ing committee, told him that CWA would not be able to meet that day and that he did not know when they would resume bargaining because the other members of CWA's bargaining committee, who were officers of CWA locals located in various parts of the State of New York, would be returning to their home locations to carry out their responsibilities in the strike which was scheduled for July 14.5 On July 14, a major strike occurred throughout the Bell System, and 95 percent of the people scheduled to work in the New York Company unit throughout the state of New York did not report for work. Statmg it in numbers of employees. 28,000 out of 30,000 scheduled employees were off the Job. 4 The Bell System is the term used to describe the American Telephone and Telegraph Company and its operating companies such as the New York Telephone Company, and including Western Electric Company. Jurisdic- tion is not in issue I'he complaint alleges, the answer admits, and I find that New York Telephone Company meets the Board's standard for the assertion of Jurisdiction over communications systems. According to Sanchez, he told Williams that they would not be prepared to meet on the 13th because it appeared that on the 14th the Western Electric installation group would be picketing and inasmuch as the members of the bargaining committee were either officers or executive The parties recommenced bargaining on July 14, and continued bargaining until Sunday, July 18, at which time all the Bell System companies reached agreement on the terms and conditions of a new contract subject to ratification by the members of the CWA. On the same date, the New York Company and CWA agreed to extend the existing agreement to August 18, 1971. On July 20, Joseph Beirne , president of CWA, an- nounced that agreement had been reached with the Bell System and that everyone should return to work on July 21, at 12:01 a.m. Employees in the New York Company unit within the j unsdiction of CWA Locals 1114, 1118, and 1119 returned to work, but employees of the New York Company in the jurisdiction of all other CWA Locals, including Respondent Locals 1125 and 1127, remained away from work. On August 14, the results of the ratification vote were published and a majority of the CWA members m the New York Company unit voted against ratification. On August 19, bargaining between CWA and the New York Company resumed and continued until February 3, 1972, when agreement was reached. The agreement was ratified by the New York Company locals and the strike ended on February 17, 1972. Throughout that period, the New York Company CWA locals, including Respondents Local 1125 and 1127, continued on strike. On August 26, 1971, CWA expressly authorized the strike of the New York Company locals. It. THE ALLEGED 8(B)(1)(A) CONDUCT A. The Facts 1. The fines The record indicates that the charging parties, all of whom had been members of either Local 1125 or 1127 prior to strike, joined the strike for a period of time, but abandoned the strike before it ended and returned to work. All were fined because they did so. Theresa Myers resigned from membership in Local 1127 on November 16, 1971, and returned to work on the same date. On May 5, 1972, she was fined $688.80. Robert Lockwood resigned from membership in Local 1127 on December 15, 1971, and returned to work on January 3, 1972. On May 9, 1972, he was fined $251.30. John J. Leonbruno resigned from membership in Local 1127 on November 30, 1971, and returned to work on December 13, 1971.On May 2, 1972, he was fined $728.00. Clayton Mitchell did not resign from membership in Local 1127. He returned to work on September 28, 1971.6 On May 8, 1972 he was fined $509.60 (i.e. 2 days earnings hoard members of local unions they would have to go back to their local areas to prepare for the Western Electnt picketing at all their locations. I credit Williams' version of Sanchez' remarks . As will appear below, the record indicates that local unions ordered a strike and picketing on July 14 at installations of the New York Company where there was no Western Electric picketing. Thus, the conduct of the locals conformed with what Williams testified lie was told. b Actually Mitchell had returned to work in August. but he ceased working briefly until September 28, the date used by Respondent Local 1127 in assessing the fine. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for each week or part thereof working during the strike beginning with September 1971). David Martin resigned from membership in Local 1127 on January 18, 1972, and returned to work on January 24, 1972. On April 26, 1972, he was fined $364. William Lane resigned from membership in Local 1127 on January 4, 1972, and returned to work on the same date. On April 20, 1972, he was fined $487.20. Josephine Baluck resigned from membership in Local 1125 on December 20, 1971. She had returned to work on November 15, 1971. On May 9, 1972, she was fined $200. Patricia McDermott resigned from membership in Local 1125 on February 7, 1972. She had returned to work on January 17, 1972. On May 11, 1972, she was fined $100. Robert Shannon returned to work on September 13, 1971. On May 1, 1972, he was fined $300. Whether or not he effectively resigned from membership in Local 1125 before returning to work is in dispute. 2. The defense fund monies CWA maintains a defense fund for ". . the defense and relief of the Union, its Locals, their members, officers and agents when circumstances arising out of labor disputes make such defense and relief necessary."7 This Fund is maintained by a 50-cent per capita per month allocation from CWA membership dues and is administered by a defense director appointed by, and under the supervision of, the CWA executive board. In addition to providing for payment of a variety of strike costs (e.g. travel expense, handbills, rentals of meeting halls) the defense fund authorizes membership assistance expenditures for a wide variety of membership expenses (e.g., food, rent, house notes, utilities, car payments). During the strike here in question, many CWA members asked for and received assistance money through the defense fund. Six of the charging parties herein received assistance money while they were on strike. Theresa Myers received $63.25; Robert Lockwood received $67.13; John J. Leonbruno received $71.25; Clayton Mitchell received $90; David Martin received $83.81; and William Lane received $137.08. After they had abandoned the strike and returned to work, not only were they fined as described above, but also demands were made upon them for repayment of the money they had received. All were notified that unless repayment was made within 10 days steps would be taken to force repayment. All but David Martin received letters from an attorney acting on behalf of Respondent Local 1127's president, H. D. Rhodes, renewing the demand for repayment of the money they had received and warning them of legal action unless payment was made within 1 week. Lockwood and Leonbruno repaid the monies they had received; the others did not. No legal actions have been instituted. B. Analysis and Conclusions Section 8(b)(1)(A) of the Act provides , in pertinent part, that it shall be an unfair labor practice for a labor organization to restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. Among the Section 7 rights guaranteed to employees is the right to refrain from concerted activities such as the strike described herein. General Counsel contends in this case that Respondents Local 1125 and 1127 have restrained and coerced employees of the New York Company in the exercise of Section 7 rights by fining employees who abandoned the strike and returned to work. Respondent Local 1127 is also alleged to have restrained and coerced employees by demanding under threat of legal action that they refund monies which they had received in the form of strike assistance during the time they participated in the strike. The principal issue in the case is whether the strike was an unprotected strike because of the failure of Respon- dents to comply with the provisions of Section 8(d)(4) of the Act. If the strike was unprotected, General Counsel contends all fines levied against employees, whether members or resigned members of Respondents, were unlawful and the demands for the return of strike assistance money were likewise unlawful. If the strike was protected, General Counsel contends that the fines were unlawful to the extent that they were imposed upon employees who had resigned from union membership and for postresignation conduct. 1. The legality of the fines a. The 8(d) issue Although the Supreme Court held in N L.R.B. v. Alhs- Chalmers Manufacturing Co., 388 U.S. 175 (1967), that disciplinary fines of union members for refusing to honor a picket line did not constitute restraint and coercion within the meaning of Section 8(b)(1)(A) of the Act, the Supreme Court later held that such fines were violative of Section 8(b)(1)(A) where they impaired some public policy of the Act. N L.R.B. v. Marine Workers, 391 U.S. 418 (1968); Scofield v. N. L.R. B., 394 U.S 423 (1969). In Marine Workers, the public policy to be protected was the right of individuals to access to the Board. In Local 12419, Mine Workers (National Grinding Wheel Company, Inc.) 176 NLRB 62, the principle of Marine Workers was extended to a strike in breach of a contractual no-strike provision, and in Communication Workers of America, AFL-CIO, Local 1170 (Rochester Telephone Company), 194 NLRB 872, the principle was applied to attempted modifications of a contract in violation of Section 8(d) of the Act. On the basis of these cases, the fines herein, whether of employees who had resigned from union membership or employees who had not resigned, were violative of Section 8(b)(1)(A) if the strike of July 14 was called without compliance with the notice provisions of Section 8(d). The proviso to Section 8(d) provides in pertinent part: . . no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification . . . (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof 7 Defense Fund Rules and Local Defense Fund Ground Rules Resp Exh 3 CWA LOCAL 1127 261 (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute . . . (4) continues in full force and effect, without resorting to strike . . . all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later . . . . In the instant case, CWA gave notice of termination of the contract on May 21, 1971, and duly served the notices required under subsection (3). As the contract had an expiration date of July 28, 1971, which was extended to August 18, 1971, CWA could not resort to a strike before August 19, 1971, without contravening Section 8(d)(4) of the Act. Respondents assert several defenses against a finding that the work stoppage that began on July 14 contravened Section 8(d)(4) of the Act. As Respondents view the matters in issue, the central facts are that CWA was party to a contract with the New York Company, that CWA gave the required 8(d) notices, that CWA authorized a work stoppage of the New York Company employees on August 26 well after expiration of the 8(d) notice period and after the expiration of the New York Company contract, as extended, and that all fines imposed herein were for picket line crossing which occurred after August 26. According to this view, work stoppages which occurred beginning July 14 are not relevant to the fines because they were not strikes of the CWA, were not authorized by CWA, and were unrelated to the negotiations between CWA and the New York Company. The record does not support such a view of the events. First of all, the issue here is not one of CWA's responsibility for the July 14 work stoppage of the New York Company employees. CWA is not charged with a violation of the Act. The issue is whether Respondents Local 1125 and 1127 violated the Act by fining certain of their members for crossing picket lines. This issue cannot be decided by ignoring the July 14 work stoppages as though they had not occurred. The fact of the matter is that employees of the New York Company did engage in a work stoppage beginning on July 14 and they continued to do so until February 12, 1972. The first question is whether the work stoppages which begs n on July 14 constituted a strike for the purpose of modifying the contract with the New York Company. As to this question, there is a suggestion by Respondents that the July 14 work stoppages did not constitute a strike of employees but rather were attributable to employees' honoring authorized picket lines by employees of Western Electric. The suggestion that the work stoppages were attributable to such picketing finds no support in the record. Undisputed evidence indicates that employees of the New York Company did not report to work beginning on July 14 because they were joining in the strike in support of demands of CWA. Thus, agents of Respondents gave notice of the strike action to their members, picket rosters were established, and members were informed daily by taped messages of the status of negotiations. On the basis of this evidence, I conclude that the employees of the New York Company engaged in a strike beginning July 14 and they were not merely honoring picket lines established by employees of Western Electric. Moreover, I conclude that the purpose of this strike was to modify the contract between CWA and the New York Company. As noted above, in mid-July, CWA and the New York Company were in the midst of negotiations. When these negotiations were temporarily suspended on July 13. it was not because the negotiations had failed; rather, the negotiations were suspended because CWA called a strike by the employees of the C & P Company and Western Electric and the New York Company employees struck in support of that stake. It would appear from this then that the stake of the New York Company employees was not for the purpose of modifying the New York Company contract. But if the New York Company strike did not have as its immediate purpose the modification of the New York Company contract, this was its ultimate purpose because the contract for which CWA called a strike was to be the pattern setter for the New York Company. The record indicates that the contract agreed upon between CWA and the Bell System companies also covered the New York Company employees who voted on acceptance and rejected it. In a very real sense, then, the New York Company strike was for the purpose of modifying the New York Company contract. I so hold. Respondents assert that the provisions of Section 8(d) do not apply to the July 14 strike of the New York Company employees because they were not parties to the contract. I do not agree. It is true that the contract is nominally between CWA and the New York Company, and Respon- dents are not signatories to it. It is equally true, however, that Respondents are the real parties in interest. The employees whose terms and conditions of employment are regulated by the contract and for whose benefit the contract was negotiated are not only members of CWA, they are also members of affiliated locals of CWA such as Respondents. The existence of the locals and the fact that they are real parties in interest is recognized by several provisions of the contract. Article 4 prohibits the promo- tion or transfer of certain individuals "without the consent of the Union Local." Article 6 provides for leaves of absence for local officials. In matters of discharge, suspension, or demotion, the local unions are invested with the authority and responsibility to process grievances pursuant to articles 10 and 11. The local union must be notified of certain terminations pursuant to article 34. Article 35 grants local union officers the right to inspect employee records. In addition, there are the facts that local union officers form part of the bargaining committee and that they, not CWA, dictated the terms of the contract which was eventually agreed to by their refusal to end the stake on July 21, 1971, and continuing to strike until local union demands were met. In view of all the foregoing circumstances, I find that Respondent Locals 1125 and 1127 were parties to the New York Company contract within the meaning of Section 8(d).8 In further defense of their conduct, Respondents point out that all the members who crossed picket lines and who 8 International Association of Machinists and Aerospace Workers, AFL-CIO (Inter-Continental Engine Service, Inc.), 177 NLRB 516, fn. I 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were fined did so after August 26, and they contend that inasmuch as CWA had served the required 8(d) notices and that both the 60-day notice period and the New York Company contract had expired by August 26, the strike after August 26 was a valid strike and the participants therein were engaged in protected activity. The flaw in this contention is that it is premised on Respondents' assertion that because the July 14 work stoppage was unauthorized by CWA that work stoppage is irrelevant to the issues. I have concluded otherwise. I have concluded that Respon- dents Local 1125 and 1127 were parties to the New York Company contract and were required to comply with Section 8(d)(4) of the Act before striking. A strike begun during the period prohibited by Section 8(d) does not become a legal strike merely by the passage of time. Rather, it continues to be prohibited and unprotected activity until such time as the union affirmatively complies with the statute, and that means the union must cease striking and must comply with the requirements of Section 8(d) before it can renew the strike. This is abundantly clear from Retail Clerks International Association, Local No. 1179, etc. (J. C. Penney Company), 109 NLRB 754, where the union had failed to serve 8(d)(3) notices prior to striking, but did so I month after the start of the strike. The strike was still in progress at the time of the hearing some 6 months later and federal mediation service had had substantially more than 30 days to assist the parties in negotiating a peaceful settlement. Nevertheless, the Board ordered the union to cease striking, stating, "To permit the Union to continue unhampered the very, strike which constitutes the heart of its unlawful conduct would be to countenance its continued flaunting of an explicit proscrip- tion of the statute." That would be precisely the effect of any holding herein that the strike was validated because on August 26 it was authorized by CWA. As Respondents did not comply with Section 8(d)(4) before striking, the strike was unprotected and continued to be so throughout its duration. Finally, it appears that Respondents are contending that the legality of the strike may not be questioned because none of the charges filed alleged that the strike was illegal. If such is Respondents' contention, it lacks merit. The charges herein alleged that the fines were violative of the Act, and thus gave notice to Respondents about what conduct of theirs the charging parties were complaining. Whether the fines were unlawful because they related to postresignation conduct or because the strike was unpro- tected is a matter of legal theory which need not be included in the charge which simply sets in motion the investigative machinery of the Board. In short, I find that the work stoppage of New York Company employees which began on July 14 was a strike authorized by Respondents for the purpose of modifying the existing contract between CWA and the New York Company, and as the strike commenced less than 60 days after notice of termination and before expiration of the existing contract it contravened the provisions of Section 8(d)(4) of the Act and was an unprotected strike. Accordingly, for reasons stated above, Respondents restrained and coerced employees within the meaning of Section 8(b)(l)(A) of the Act by fining members and resigned members for abandoning the strike and returning to work. b. Postresignation fines As noted earlier, an alternative basis for finding that the fines were unlawful is that they were imposed, in some instances, upon members who had resigned union mem- bership and for their postresignation conduct. The record supports such a finding as to most of the charging parties, herein. Theresa Myers, Robert Lockwood, John J. Leonbruno, David Martin, and William Lane had all resigned from membership before returning to work and were fined by Respondent Local 1127. Accordingly, Respondent Local 1127 violated Section 8(b)(1)(A) of the Act by fining them for abandoning the strike and returning to work after their resignations. Machinists Lodge 405 v. N.L.R.B.,412 U.S. 84, decided May 21, 1973. Josephine Baluck returned to work before resigning from membership. She was fined $200.9 Respondent Local 1125 stipulated that part of the fine was for her postresignation conduct, and to that extent the fine was violative of Section 8(b)(1)(A) of the Act. Patricia McDermott returned to work on January 17, 1972, and did not resign until February 7, 1972. In accordance with Respondent Local 1125's formula, she was fined $100. General Counsel does not contend the fine formula was unlawful, and as McDermott was not fined for postresignation conduct, the fine against her was unlawful only by reason of the finding above that the strike was unprotected. Robert Shannon returned to work on September 13, 1971. He testified that on September 12, he had telephoned Clifford Goggins, president of Respondent Local 1125, and had told him he needed money and that "I would have to quit the Union and go back to work." Goggins had told him he would be a scab and Shannon reiterated he had to return to work. That same day, Shannon wrote a resignation letter to Respondent Local 1125, which he mailed on September 13 by registered mail. The letter was never delivered and was returned to Shannon who made no further efforts to resign. Goggins recalled Shannon's telephone call and that Shannon said he had to return to work, but he could not remember Shannon saying he had to quit the Union. I credit Shannon and I find that his statement to Goggins conveyed his unequivocal intent to resign and was an effective resignation. Neither Respondent Local 1125 in its bylaws, nor its parent CWA in its constitution, has any provision respecting resignation from membership. Respondent Local 1125 nevertheless contends that an oral resignation is ineffective, because it is its policy not to accept any, that applications for membership are in writing, that Shannon was advised by management to resign in writing and believed it necessary to do so as evidenced by his 9 The parties, stipulated that fines by Respondent Local 1125 were imposed on a formula of $50 per month for each month or portion thereof that a member worked before termination of the strike. CWA LOCAL 1127 263 attempted written resignation. I find no merit in this contention. Both in N.L R.B. v. Granite State Joint Board, 409 U.S. 213 (1972); and Machinists Lodge 405 v. N. L. R. B., supra, the Supreme Court rejected attempts by the unions involved therein to impose on their members restrictions on their right to resign which did not appear in their constitutions and bylaws, or which their members either had no knowledge of, or had not consented to. In the instant case, whatever Respondent Local 1125's practice or policy may have been respecting oral resignations it was not communicated to Shannon, nor was he shown to have consented to it. Such advice as he may have received from management and followed respecting submitting his resignation in writing does not constitute either notice of a requirement for a written resignation, or a consent to such a requirement. Accordingly, as I find Shannon effectively resigned his membership from Respondent Local 1125, I find that the fine imposed upon him for his postresignation conduct was violative of Section 8(b)(1)(A) of the Act. In summary, I find that had the July 14 strike constituted protected activity the fines imposed upon Myers, Lock- wood, Leonbruno, Martin, Lane, and Shannon, and part of the fine levied against Baluck, were nevertheless violative of Section 8(b)(1)(A) of the Act because they were imposed on members for their postresignation conduct. In McDer- mott's case, the fines related to preresignation conduct, and Clayton Mitchell did not resign. As to them, fines would have been lawful had the strike been protected. 2. The legality of the demands for the repayment of defense fund money General Counsel contends that the demands of Respon- dent Local 1127 for the return of defense fund money under threat of court proceedings constituted restraint and coercion of employees in the exercise of Section 7 rights within the meaning of Section 8(b)(l)(A) of the Act. General Counsel has not articulated any rationale in support of this contention, but it is evident that he is relying on the rationale of the disciplinary fine cases. The difficulty with application of the rationale of those cases to this issue is that there is a significant difference between disciplinary fines and the demands in question. Discipli- nary fines normally arise out of the filing of intraunion charges against members for violating specified union rules, followed by union trials, and "adjudications" of guilt. The demand for the return of defense fund monies had no such genesis; rather, the demands were based on an asserted breach of an agreement by the member strikers to continue on strike in return for strike assistance. The record does not contain any evidence that there was an agreement by the strikers receiving assistance to repay the monies received if they abandoned the strike. All that appears is that in making the demands, Respondent Local 1127 prefaced them with the statement "in accordance with the agreement which you signed at the time you received CWA Defense Fund Assistance . .. ... This is insufficient to establish the existence of an agreement. In any event, even if there had been an agreement, I would find that the demands for repayment, accompanied by threats of legal action, were coercive. In analyzing the meaning of "restrain or coerce" in Section 8(b)(1)(A) of the Act, the Supreme Court in Allis-Chalmers, supra. used as an example of coercive conduct "court awards of damages against a contracting party for nonperformance of a contractual obligation voluntarily undertaken." This exam- ple fits this. case. Threats of legal action with the potential of court awards are coercive. To that extent, then, the rationale of the fine cases is applicable at the defense fund money issue. According to that rationale, had the strike been a protected strike, Respondent Local 1127 could enforce its contract with the recipients of strike assistance. But, as the strike was unprotected, the demands and threats of legal action were unlawful because they were a means to enforce conduct found to have contravened Section 8(d) of the Act. Communications Workers of America, AFL-CIO, Local 1170 (Rochester Telephone Company), supra. Strikers desi- rous of abandoning the unprotected strike would be deterred from doing so if they could be subjected to law suits for the collection of strike assistance monies. True, the strikers had voluntarily participated in the strike at its inception, and it was only because they did so that the matter of strike assistance money ever arose. In addition, strike assistance was given only because the strikers applied and qualified for it. However, the strikers rendered services for that assistance while they continued on strike and any agreement to repay in the event of the abandon- ment of the strike must be viewed as contrary to public if the strike to which the agreement binds them is itself contrary to public policy. Accordingly, I find that the demands of Respondent Local 1127, coupled with threats of legal action, for the repayment of strike assistance monies, constituted restraint and coercion of employees within the meaning of Section 8(b)(1)(A) of the Act. Respondent Local 1127 denied any violation of the Act relative to this issue , not on the ground that such demands are not violative of Section 8(b)(1)(A) of the Act, but on the ground that the defense fund is a function of the CWA and Respondent Local 1127 acted as agent of CWA in demanding repayment of the money. I find no merit to this contention. The CWA defense fund rules and local fund ground rules assign substantial obligations and responsibil- ities to the local unions in the administration of the defense fund. Among other functions, the local unions process the requests for assistance and disburse the monies. When demands were made for the return of the monies, they were made by H. D. Rhodes, an officer and agent of Respon- dent Local 1127, who purported to act in that capacity and not as an agent of CWA. On the record herein, it is clear that Respondent Local 1127 is as much a principal in this matter as CWA. In any event, were it only an agent of CWA, it would be liable for its own unlawful acts. "From the standpoint of a person injured by the wrongful act of another the relation of principal and agent is immaterial, and the status of the wrongdoer in that connection of no consequence." Am. Jr. 2d Agency, Section 300. The Board has consistently held agents liable for their own miscon- duct, even where the principal was not charged. Edward G. Partin, Business Agent, Local No. 5, General Truck Drivers, Chauffeurs, Warehousemen & Helpers of America, 148 NLRB 819. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE 10(B) ISSUE. Clayton Mitchell returned to work on September 28, 1971. On January 18, 1972, Respondent Local 1127 demanded repayment of $90 in strike assistance aid he had received and on February 11, 1972, Mitchell was warned of possible legal action to collect payment. On May 8, 1972, he was fined $509.60. Mitchell filed his charge in Case 3-CB-1851-19 on May 10, 1972. Investigation of his charge disclosed that he had not resigned his union membership and, for this reason, the Regional Director requested that Mitchell withdraw his charge. He submitted a withdrawal request on June 14, 1972, and it was approved by the Regional Director on June 20, 1972. Subsequently, the Regional Director concluded that the strike was unprotected because of 8(d) considerations as discussed above, and Mitchell was advised that the Regional Director was of the opinion his withdrawn charge had merit. On January 22, 1973, Mitchell requested that his charge be reinstated. On January 23, 1973, the Regional Director issued an order withdrawing Regional Director's approval of withdrawal request and reinstating unfair labor practice charge. On January 31, 1973, he issued complaint pursuant to such reinstated charge. As the foregoing chronology indicates, the reinstatement of Mitchell's charge occurred more than 6 months after the occurrence of the alleged unfair labor practices. Respon- dent contends that the complaint issued pursuant to the reinstated charge was barred by Section 10(b) of the Act.ili In support of this contention, Respondent relies on Koppers Company, Inc., 163 NLRB 517, and N.L.R. B. v. Silver Bakery, Inc., 351 F.2d 37 (C.A. 1, 1965). General Counsel contends that the Koppers case is not controlling because in that case no equitable considera- tions were presented to justify reinstatement of the charge. According to General Counsel, this case is governed by the Board's decision in Silver Bakery, Inc. of Newton, 150 NLRB 421, and not by the court's decision. I am, of course, bound by the Board's decision in Silver Bakery unless it appears that the Board has acquiesced in the view expressed by the Court of Appeals in denying enforcement. It In this regard, the matter is not clear. Thus, I note that in Koppers, on which Respondent relies, the Board in holding that the complaint was barred by Section 10(b) did not cite the court's decision in Silver Bakery case. The implication is that its decision in Silver Bakery is viable precedent. General Counsel contends that it is and points to three cases. In one, A & P Iron Works, Inc., 179 NLRB 291, the Board did not reach the 10(b) issue . In another, Glacier Lincoln-Mercury, 189 NLRB 640, there was a finding that there were ' no equitable considerations to warrant reins- tatement of the charge. Only in Russell Coal and Clay Co., 165 NLRB 978, does it appear that the Board applied its Silver Bakery decision, but the case is factually distinguish- able as it involved reinstatement of a dismissed charge where the charging party had appealed the dismissal. In short, there is no clear authority for the proposition that 10 Sec 10(b) provides, in pertinent part, "That no complaint shall issue based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge with the Board and the service of a copy thereof the Board still adheres to its Silver Bakery decision where a charge is reinstated after withdrawal upon erroneous or inaccurate advice of the Regional Office. In my judgment, absent a clear indication by the Board that it has abandoned the principle enunciated in Silver Bakery, I am bound by its decision therein. Accordingly, I conclude that the complaint in Case 3-CB-1851-19 is supported by a timely charge and I deny Respondent Local 1127's motion to dismiss. Even if Mitchell's reinstated charge were deemed untimely, his inclusion in a complaint would be proper on the charges filed by Theresa Myers (Case 3-CB-1851-11), Robert Lockwood (Case 3-CB-1851-15), John J. Leonbru- no (Case 3-CB-1851-18), David Martin (Case 3-CB-1951-21), and William Lane (Case 3-CB-1851-22). Although each of those charges alleged that the individual charging party had been fined unlawfully, each also contained the allegation that Respondent Local 1127 "By the acts set forth in the paragraph above and by other acts and conduct, the above named labor organization, by its officers, agents, and representatives, has restrained and coerced and is restraining and coercing the employees of the above-named employer in the exercise of the rights guaranteed in Section 7 of the Act." This allegation was sufficiently broad to cover Mitchell's case which was part and parcel of Respondent Local 1127's conduct relative to strikers who had abandoned the strike. Respondent Local 1127 has not been prejudiced by the Regional Director's procedure of processing as individual charges what could have been processed in a single charge. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents Local 1125 and 1127 set forth in section II, above, occurring in connection with the operations of the Employer described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that Respondents Local 1125 and 1127 have engaged in unfair labor practices I shall recommend that they be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As to the fines, I shall recommend that they be cancelled and that Respondents withdraw any charges which may have been filed against the charging parties herein as a predicate for imposing the fines , and that any suspensions imposed for failure to pay the fines be lifted. I shall also recommend that the charging parties herein be notified, in writing, that such action has been taken. As to the demands for the repayment of strike assistance momes, I shall recommend that Respondent Local 1127 withdraw such demands and notify the affected employees upon the person against whom such charge is made i i Novak Logging Co.. 119 NLRB 1573 CWA LOCAL 1127 265 in writing that it is not demanding repayment and will not seek legal action to obtain payment. As Robert Lockwood and John Leonbruno repaid the monies they had received, I shall recommend that Respondent Local 1127 return such monies to them with interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. CONCLUSIONS OF LAW 1. Respondents Local 1125 and 1127 are, each of them, and at all times material herein have been, labor organiza- tions with the meaning of Section 2(5) and 8(b) of the Act. 2. New York Telephone Company is an employer within the meaning of Section 2(2) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By imposing fines upon employees of the New York Telephone Company, whether members or resigned mem- bers, because said employees abandoned the July 14 strike and returned to work, where the strike had commenced without compliance with the provisions of Section 8(d)(4) of the Act, Respondents Local 1125 and 1127 have engaged in, and are engaging in, unfair labor practices within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act. 4. By imposing fines upon employees of New York Telephone Company who has resigned from membership because of their postresignation conduct in abandoning the July 14 strike and returning to work, Respondents Local 1125 and 1127 have engaged in, and are engaging in, unfair labor practices within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act. 5. By demanding that employees of the New York Telephone Company, whether members or resigned mem- bers, repay strike assistance monies which they had received during their participation in the strike which had commenced on July 14, 1971, because such employees abandoned the strike and returned to work, where the strike iad commenced without compliance with the provisions of Section 8(d)(4) of the Act, Respondent Local 1127 has engaged in, and is engaging in, unfair labor practices within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act. On the basis of the above findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER i2 2. Notify, in writing, the employees upon whom demand for repayment was made that the demand has been withdrawn and that no legal action shall be instituted to collect payment. 3. Refund to Robert Lockwood and John Leonbruno the strike assistance monies which they have been required to repay. B. Respondents, Communications Workers of Ameri- ca, AFL-CIO, Local 1127 and 1125, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act by imposing fines upon employees and suspending them for nonpay- ment thereof, because said employees abandoned the strike and returned to work, where the strike had commenced without compliance with the provisions of Section 8(d)(4) of the Act, and where the employees had resigned from membership and the fines related to their postresignation conduct. (b) In any like or related manner restraining or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act. (a) Cancel the fines imposed upon any of the employees who abandoned the strike of July 14, 1971, to return to work, and withdraw any charges filed against such employees and lift any suspensions from membership for nonpayment of such fines and notify the affected employ- ees, in writing, of the action taken. (b) Post at their offices and meeting rooms and at the affected locations of the New York Telephone Company, if the Company is willing, copies of the attached notices, marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 3, after being signed by an authorized representative, shall be posted at the aforementioned locations in conspicuous places, including all places where notices to employees are customarily posted, and reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the aforesaid Regional Director, in writing, within 20 days of receipt of the Order what steps each has taken to comply herewith. A. Respondent, Communications Workers of America, AFL-CIO, Local 1127, its officers, agents, and representa- tives, shall: i. Cease and desist from restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act by demanding, under threat of legal action, that employees who abandon a strike and return to work repay strike assistance monies they received during their participation in the strike, where the strike had commenced without compliance with the provisions of Section 8(d)(4) of the Act. iY In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall , as provided in Sec 102.48 of the Rules and Regulations . be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 13 The notice to be posted by Respondent Local 1125 shall be marked "Appendix A", that by Respondent Local 1127 "Appendix B." In the event the Board's Order is enforced by a Judgment or the United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law by fining members and former members for abandoning the strike against the New York Telephone Company which began on July 14, 1971, and has ordered us to post this notice. WE WILL NOT impose fines upon members or former members, nor suspend them for nonpayment of fines which have been imposed because employees aban- doned the strike against the New York Telephone Company which commenced on July 14, 1971, and returned to work. WE WILL notify Josephine Baluck, Patricia McDer- mott, and Robert Shannon that we have cancelled the fines imposed upon them and lifted their suspension from membership. COMMUNICATIONS WORKERS OF AMERICA , AFL-CIO, LOCAL 1125 (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 9th Floor Federal Building, 111 West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we have violated the law by fining members and former members for abandoning the strike against the New York Telephone Company which began on July 14, 1971, and has ordered us to post this notice. WE WILL NOT demand, under threat of legal action, that members or former members who abandoned the strike which began on July 14, 1971, and returned to work that they return strike assistance monies which they received during the time they participated in the strike. WE WILL notify Theresa Myers, Robert Lockwood, John Leonbruno, Clayton Mitchell, David Martin, and William Lane that we are withdrawing our demands for the return of the strike assistance monies they received and that we will not institute legal action to collect payment, and WE WILL return to John Leonbruno and Robert Lockwood the monies which they have repaid us. WE WILL NOT impose fines against members or former members, nor suspend them for nonpayment of fines, which have been imposed because employees abandoned the strike against the New York Telephone Company which commenced on July 14, 1971, and returned to work. WE WILL notify Theresa Myers, Robert Lockwood, John Leonbruno, Clayton Mitchell, David Martin, and William Lane that we have canceled the fines imposed upon them and lifted their suspensions from member- ship. Dated By COMMUNICATIONS WORKERS OF AMERICA , AFL-CIO, LOCAL 1127 (Labor Organization) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 9th Floor Federal Building, 111 West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.