HINCKS, Circuit Judge.
This is a petition to set aside an order of the National Labor Relations Board directing the New Jersey Bell Telephone Company (hereinafter called the Company), and the Communications Workers of America, CIO (hereinafter called the Union), to cease and desist from engaging in certain practices deemed by the Board to be in contravention of the National Labor Relations Act, as amended. The Union, as the exclusive bargaining representative of all the non-supervisory employees of the Traffic Department of the Company, is the petitioner.
The facts of the case are not in dispute. On November 2, 1950, the Company and the Union signed a collective agreement. This contract included a union security provision of the type known as a “maintenance of membership” clause. Under this clause, an employee who is a member of the Union as of the effective date of the contract, or who thereafter becomes a member, must continue as such throughout the life of the agreement as a condition of employment. If an employee’s membership in the Union is terminated during the contract period, the Company is obligated to discharge him upon notification by the Union. By its own terms this contract expired on April 5, 1952. On April 14, 1952, after a nine day interim period in which the parties were without any agreement, a new contract was signed. The 1952 contract included a maintenance of membership clause substantially similar to the one contained in the 1950 agreement.1 The validity of the clause is not challenged.
On March 26, 1952, Eleanor Steib, then a member of the Union and an employee of the Company, sent a letter of resignation to the Union. On the same day she wrote the Company cancelling her union dues deduction authorization. While Mrs. Steib’s dues were fully paid for the month of March, they went unpaid for that portion of April within the 1950 agreement. Hence, under the maintenance of membership clause, the Union could have validly insisted upon her discharge any time within the 1950 contract period. The Union, however, failed to act at that time and instead waited until October 7, 1952, before demanding her dismissal. The Union explains its delay by referring us to a provision in its own Constitution. Article VI, Section 5, of the Union Constitution provides that if a member’s dues are in arrears for sixty days the member is automatically suspended, and if the default continues for an additional thirty days, after no tice, the member is automatically er [837]*837pelled.2 The Union asserts that it could not take immediate action with respect to Mrs. Steib because of this provision.
The Company complied with the Union’s demand that Mrs. Steib be discharged. She then brought a complaint charging that the Union’s action in seeking her dismissal was an unfair labor practice under Sections 8(b) (1) (A) and 8(b) (2) of the National Labor Relations Act, as amended.3 Later the complaint was amended to include charges against the Company under Sections 8 (a) (1) and 8 (a) (3) of the Act for discharging Mrs. Steib.4 The Trial Examiner, after making findings of fact and conclusions of law, recommended that the complaint be dismissed. However, the Board found that both the Company and the Union had violated the above cited sections and issued a cease and desist order. It also ordered that Mrs. Steib be reinstated.
The Union presents two arguments. The first one is that Mrs. Steib’s discharge was justified under the 1952 contract. It is contended that her resignation on March 26, 1952, was ineffective as constituting a termination of her Union membership. The Union argues that under its constitution termination of membership can be effected in but three ways: (1) a member may be expelled upon failure to pay dues for ninety days, (2) a member may leave the jurisdiction of the Union, or (3) a member may be promoted to the supervisory ranks. Voluntary resignation, the argument runs, is impossible.5 Since Mrs. Steib, if this argument be sound, could not voluntarily resign, she was, under Article 6, Section 5, of the Union Constitution, still a mem[838]*838ber of the Union on March 26, 1952, and continued as such for ninety days thereafter, a period which spanned the nine-day interim period during which the parties were without any contract. Therefore she was a member of the Union on April 14,1952, and subject to the maintenance of membership clause of the 1952 agreement.
The Union’s argument hinges on the assertion that Mrs. Steib could not voluntarily resign. In support of this argument our attention is directed to the proviso to Section 8(b) (1) (A) of the Act which states the following: “ * * * this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein”.
We agree that the proviso protects the Union’s right to make its own rules with respect to membership, but assuming, arguendo, that a rule wholly prohibiting voluntary resignations would be valid, we think that in the absence of any rule on the subject of voluntary resignation, the proviso is inapplicable. Concededly the Union Constitution and bylaws are absolutely silent as to whether a member can voluntarily resign. Hence we think that the common law doctrine on withdrawal from voluntary associations is apposite. Under that doctrine, a member of a voluntary association is free to resign at will, subject of course to any financial obligations due and owing the association. Fitzgerald v. Dillon, D.C.N.Y., 92 F.Supp. 681; Arnold v. Burgess, 241 App.Div. 364, 272 N.Y.S. 534; Bossert v. Dhuy, 221 N.Y. 342, 117 N.E. 582.
The Union claims, however, that under its “interpretation” of Article YI, Section 5, of the Constitution, Mrs. Steib could not voluntarily resign and that under the proviso to Section 8 (b) (1) (A), discussed above, this interpretation of its own rules as to membership is final and not reviewable by either the National Labor Relations Board or the courts. With this proposition we can not agree. In N. L. R. B. v. National Seal Corp., 2 Cir., 127 F.2d 776, 779, Judge Learned Hand very definitely interpreted a rule having to do with union membership. In fact he interpreted a rule which is quite similar to the one in the instant case. He stated: “There remains the question whether the failure of a union member to pay his dues, ended his membership and the union’s authority to act for him * * * it appeared that the constitution of the union provided that default by a member in the payment of his dues * * * would ‘automatically cancel membership.’ * * * To turn such a clause into a resignation quite inverts its meaning.”
Though the National Seal case was decided prior to the passage of the Taft-Hartley Act, we do not think that the proviso to 8(b) (1) (A) disturbs its underlying theory. The proviso only states that the union shall be free to prescribe its own rules with respect to membership, it does not prohibit the Board and the courts from interpreting those rules.
We are prepared to give weight to the Union’s interpretation of its own rules with respect to membership. But notwithstanding we cannot agree that Article VI, Section 5, of the Union Constitution can be construed as a denial of a member’s right to resign.
Free access — add to your briefcase to read the full text and ask questions with AI
HINCKS, Circuit Judge.
This is a petition to set aside an order of the National Labor Relations Board directing the New Jersey Bell Telephone Company (hereinafter called the Company), and the Communications Workers of America, CIO (hereinafter called the Union), to cease and desist from engaging in certain practices deemed by the Board to be in contravention of the National Labor Relations Act, as amended. The Union, as the exclusive bargaining representative of all the non-supervisory employees of the Traffic Department of the Company, is the petitioner.
The facts of the case are not in dispute. On November 2, 1950, the Company and the Union signed a collective agreement. This contract included a union security provision of the type known as a “maintenance of membership” clause. Under this clause, an employee who is a member of the Union as of the effective date of the contract, or who thereafter becomes a member, must continue as such throughout the life of the agreement as a condition of employment. If an employee’s membership in the Union is terminated during the contract period, the Company is obligated to discharge him upon notification by the Union. By its own terms this contract expired on April 5, 1952. On April 14, 1952, after a nine day interim period in which the parties were without any agreement, a new contract was signed. The 1952 contract included a maintenance of membership clause substantially similar to the one contained in the 1950 agreement.1 The validity of the clause is not challenged.
On March 26, 1952, Eleanor Steib, then a member of the Union and an employee of the Company, sent a letter of resignation to the Union. On the same day she wrote the Company cancelling her union dues deduction authorization. While Mrs. Steib’s dues were fully paid for the month of March, they went unpaid for that portion of April within the 1950 agreement. Hence, under the maintenance of membership clause, the Union could have validly insisted upon her discharge any time within the 1950 contract period. The Union, however, failed to act at that time and instead waited until October 7, 1952, before demanding her dismissal. The Union explains its delay by referring us to a provision in its own Constitution. Article VI, Section 5, of the Union Constitution provides that if a member’s dues are in arrears for sixty days the member is automatically suspended, and if the default continues for an additional thirty days, after no tice, the member is automatically er [837]*837pelled.2 The Union asserts that it could not take immediate action with respect to Mrs. Steib because of this provision.
The Company complied with the Union’s demand that Mrs. Steib be discharged. She then brought a complaint charging that the Union’s action in seeking her dismissal was an unfair labor practice under Sections 8(b) (1) (A) and 8(b) (2) of the National Labor Relations Act, as amended.3 Later the complaint was amended to include charges against the Company under Sections 8 (a) (1) and 8 (a) (3) of the Act for discharging Mrs. Steib.4 The Trial Examiner, after making findings of fact and conclusions of law, recommended that the complaint be dismissed. However, the Board found that both the Company and the Union had violated the above cited sections and issued a cease and desist order. It also ordered that Mrs. Steib be reinstated.
The Union presents two arguments. The first one is that Mrs. Steib’s discharge was justified under the 1952 contract. It is contended that her resignation on March 26, 1952, was ineffective as constituting a termination of her Union membership. The Union argues that under its constitution termination of membership can be effected in but three ways: (1) a member may be expelled upon failure to pay dues for ninety days, (2) a member may leave the jurisdiction of the Union, or (3) a member may be promoted to the supervisory ranks. Voluntary resignation, the argument runs, is impossible.5 Since Mrs. Steib, if this argument be sound, could not voluntarily resign, she was, under Article 6, Section 5, of the Union Constitution, still a mem[838]*838ber of the Union on March 26, 1952, and continued as such for ninety days thereafter, a period which spanned the nine-day interim period during which the parties were without any contract. Therefore she was a member of the Union on April 14,1952, and subject to the maintenance of membership clause of the 1952 agreement.
The Union’s argument hinges on the assertion that Mrs. Steib could not voluntarily resign. In support of this argument our attention is directed to the proviso to Section 8(b) (1) (A) of the Act which states the following: “ * * * this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein”.
We agree that the proviso protects the Union’s right to make its own rules with respect to membership, but assuming, arguendo, that a rule wholly prohibiting voluntary resignations would be valid, we think that in the absence of any rule on the subject of voluntary resignation, the proviso is inapplicable. Concededly the Union Constitution and bylaws are absolutely silent as to whether a member can voluntarily resign. Hence we think that the common law doctrine on withdrawal from voluntary associations is apposite. Under that doctrine, a member of a voluntary association is free to resign at will, subject of course to any financial obligations due and owing the association. Fitzgerald v. Dillon, D.C.N.Y., 92 F.Supp. 681; Arnold v. Burgess, 241 App.Div. 364, 272 N.Y.S. 534; Bossert v. Dhuy, 221 N.Y. 342, 117 N.E. 582.
The Union claims, however, that under its “interpretation” of Article YI, Section 5, of the Constitution, Mrs. Steib could not voluntarily resign and that under the proviso to Section 8 (b) (1) (A), discussed above, this interpretation of its own rules as to membership is final and not reviewable by either the National Labor Relations Board or the courts. With this proposition we can not agree. In N. L. R. B. v. National Seal Corp., 2 Cir., 127 F.2d 776, 779, Judge Learned Hand very definitely interpreted a rule having to do with union membership. In fact he interpreted a rule which is quite similar to the one in the instant case. He stated: “There remains the question whether the failure of a union member to pay his dues, ended his membership and the union’s authority to act for him * * * it appeared that the constitution of the union provided that default by a member in the payment of his dues * * * would ‘automatically cancel membership.’ * * * To turn such a clause into a resignation quite inverts its meaning.”
Though the National Seal case was decided prior to the passage of the Taft-Hartley Act, we do not think that the proviso to 8(b) (1) (A) disturbs its underlying theory. The proviso only states that the union shall be free to prescribe its own rules with respect to membership, it does not prohibit the Board and the courts from interpreting those rules.
We are prepared to give weight to the Union’s interpretation of its own rules with respect to membership. But notwithstanding we cannot agree that Article VI, Section 5, of the Union Constitution can be construed as a denial of a member’s right to resign. Article VI, Section 5, gives the Union the power to expel a member who defaults in his dues; surely it can not be fairly said that an organization’s power to expel, standing alone, prohibits a member from resigning:
Absent the ninety day grace period in the Union Constitution, petitioner could have sought Mrs. Steib’s discharge at any time prior to April 5, 1952. We are now asked to recognize that the ninety day grace period is intended for the benefit of employees and that the Union should not be penalized for complying with it. While we do not pass on the wisdom of Article VI, Section 5 of the Union Constitution, we think we lack authority to convert it into a provision denying voluntary resignation. When the Union and the Company met at the bargaining table, the Company went no further than to accede to a maintenance [839]*839of membership contract and the Union thereunder was not entitled to claim, as in effect it does, that it is entitled to rights which, even if not in contravention of the proscription of closed shops, was an incident to an agreement providing for greater union security than that bargained for.
Since there is nothing from which we can fairly infer that voluntary resignation is proscribed, consistent with the cases cited above we hold that Mrs. Steib was free to resign at will. Her resignation was effective forthwith, and because of the nine day interim period immediately prior to the signing of the 1952 agreement, she was not a member of the union during that contract period, and hence not subject to its maintenance of membership clause.
The Union argues in the alternative that the discharge of Mrs. Steib was justified under the 1950 agreement. Its contention, adopted in the report of the Trial Examiner, is that for Mrs. Steib’s breach of the 1950 agreement its remedy was not extinguished by the expiration of the agreement. This position seems to depend upon the proposition that Mrs. Steib, as a member of the Union when it made the agreement with the Company was in effect a party — a co-obligor — to the agreement. Assuming, arguendo, that she was, nevertheless, by the terms of that agreement, she bound herself no further than to assume a liability to be discharged during the life of the agreement and the Company bound itself to accomplish her discharge on Union request only during the life of the agreement. The fact that nine days after the expiration of the 1950 agreement another agreement was made cannot serve to enlarge the obligations theretofore existing.
We hold, therefore, that her subsequent discharge on Union demand made long after the expiration of the 1950 contract was not in discharge of any obligation arising from the agreement and hence was an unfair labor practice. This is so not because the remedy for a breach of contract may not survive the contract: it is because the company’s obligation to discharge and Mrs. Steib’s liability to be discharged for non-maintenance of union membership terminated with the 1950 agreement with the result that thereafter there were no obligations which could be the subject-matter of breach. To hold otherwise would be to read into the agreement a provision which is wholly absent — a provision that the agreement should remain in effect until superseded by a subsequent agreement — thus affording a greater security for the Union than it obtained at the bargaining table.
This holding is in accord with Colonie Fibre Co. v. N. L. R. B., 2 Cir., 163 F.2d 65, 69, where the following was stated: “Although Blais and Blair did not pay dues in the AFL from January through March 1945, it is unnecessary to pass on the effect of such nonpayment, inasmuch as the original contract expired on March 14, 1945, and no demand was made during the effective period of this contract that these employees be discharged for failure to pay dues.” 6 The Trial Examiner relied in part on National Lead Co., Titanium Division, 106 N. L. R. B. No. 96. This decision is clearly distinguishable from the instant case for numerous reasons, chief of which is that while discharge for nonpayment of dues during the period of the first union security agreement did not take place until after the expiration of the agreement, the first agreement was immediately succeeded by a second such agreement, with no interim period.
It is true that Mrs. Steib might have had grounds for an unfair labor practice charge against the Union if the Union had sought her discharge before April 5, 1952, on the ground that the Union had failed to live up to their own Constitution in not affording her the ninety day grace period under Article VI, Section 5. Under the peculiar facts of this case, the Union was thus put in a dilemma. Compliance with its Constitution [840]*840would preclude insistence on Mrs. Steib’s discharge while the 1950 agreement was in effect. If, on the other hand, it demanded her discharge in contravention of its constitution its action might be viewed as an unfair labor practice. But from this dilemma we cannot extricate it, without adding to the only agreement emerging from the bargaining table.
The petition to set aside the order of the National Labor Relations Board is denied and the Board’s cross petition for enforcement is granted.